CopyCited 35 times | Published | Supreme Court of Georgia | Nov 23, 2015 | 780 S.E.2d 311
...On appeal, the Task Force alleges the special
master and the trial court erred in failing to find an issue of material fact existed
36
as to whether the defendants had intimidated court officers in violation of
OCGA §
16-10-9727 as one of the predicate acts and erred when they elected not
to consider the wire fraud claim. We discuss each allegation in turn.
a. Violation of OCGA §
16-10-97
The special master and the trial court found that the Task Force failed to
produce evidence of violations of OCGA §
16-10-32 (b) (1) which concerns
27
OCGA §
16-10-97 states:
(a) A person who by threat or force or by any threatening action, letter, or
communication:
(1) Endeavors to intimidate or impede any grand juror or trial juror or any officer in
or of any court of this st...
...37
physical or economic threats designed to prevent someone from participating in
an official proceeding.28 On appeal, the Task Force complains that the special
master and trial court erred by failing to analyze the evidence under OCGA §
16-10-97, which concerns the intimidation of a court officer. A review of the
initial complaint, as well as the first, second, and third amended complaints
shows, however, that the Task Force never raised a claim for a violation of
OCGA §
16-10-97....
...of OCGA §
16-10-32 (b) and OCGA §
16-14-3 (9) (A) (xiv), which statutes
collectively concern interfering with a person or a witness, who is participating
in an official proceeding, by making physical or economic threats. Therefore,
any purported violation of OCGA §
16-10-97 was not properly before the trial
28
OCGA §
16-10-32 (b) (1) provides:
Any person who threatens or causes physical or economic harm to another person or
a member of such person's family or household, threate...
CopyCited 15 times | Published | Supreme Court of Georgia | Oct 5, 2015 | 778 S.E.2d 196
...3
conviction thereof, shall be punished by imprisonment for not less than
one nor more than five years, a fine not to exceed $5,000.00, or both.1
Harrell contends that, on its face and as applied to him, OCGA §
16-10-97 (a)
(1) is unconstitutional because it violates the right of free speech found in the
First Amendment to the Constitution of the United States.2 The Supreme Court
of the United States has held that a state can criminalize some speech made with
the intent to intimidate another without running afoul of the First Amendment.3
Virginia v. Black,
538 U.S. 343 (123 SCt 1536, 155 LE2d 535) (2003).
However, we conclude that OCGA §
16-10-97 (a) (1) was unconstitutionally
applied to Harrell.
In Counts 2 and 3 of the indictment, Harrell was alleged to have violated
1
In 2015, an amendment to OCGA §
16-10-97 expanded the applicability of the statute under
subsection (b). See Ga. L. 2015, p. 422, § 5-25.
2
The State contends that the question of the constitutionality of OCGA §
16-10-97 (a) (1)
is not properly before this Court because Harrell did not file his pleading raising the issue within 10
days of arraignment, as required by OCGA §
17-7-110....
...nd its ability
to enforce the strictures of OCGA §
17-7-110 on appeal has been waived. See Hicks v. State,
287
Ga. App. 105, 106 (1) (650 SE2d 767) (2007).
3
Harrell does not challenge the constitutionality of that portion of OCGA §
16-10-97 (a) (1)
which prohibits “imped[ing] any grand juror or trial juror or any [court] officer ....
....” But, we note
that punishing speech that endeavors to impede the duties of a juror or court officer appears to be
permissible under the First Amendment. See Haley v. State,
289 Ga. 515, 519-528 (2) (712 SE2d
838) (2011).
4
OCGA §
16-10-97 (a) (1), with both counts accusing him of
the offense of INTIMIDATION OF A COURT OFFICER, for that
[Harrell] ....
...is a type of true threat, where a speaker directs a threat to a person or group of
persons with the intent of placing the victim in fear of bodily harm or death.”
Id. at 344 (III) (A). Thus, for intimidation such as alleged in the indictment to
be validly proscribed by OCGA §
16-10-97 (a) (1), the intimidation must be
4
We note that by requiring that the defendant “did . . . endeavor” to intimidate a court officer
“while in the discharge” of his or her duties, OCGA §
16-10-97 (a) (1) does not have as an element
of the crime that the intimidation be directed at procuring an act which the court officer is actually
empowered to perform.
5
considered a “true t...
...While
Harrell’s speech might well be described as caustic and unpleasant, Nielander,
supra, it did not convey “a serious expression of an intent to commit an act of
unlawful violence.” Black, supra.5
Although the State notes that OCGA §
16-10-97 (a) (1) prohibits
endeavoring to impede a court officer through communication, and asserts that
Walker and Graham were impeded in the discharge of their duties by virtue of
Harrell’s speech, the State did not charge Harrell with impe...
...behavior, but only
with endeavoring to intimidate the alleged victims. And, as his speech cannot
be considered to constitute “true threats,” and thus does not constitute any
proscribable act of intimidation, his convictions for violating OCGA §
16-10-97
(a) (1) must be reversed.
5
We note that the court did not instruct the jury on the meaning of “intimidate” or “true
threat,” nor were such instructions requested....
CopyCited 3 times | Published | Supreme Court of Georgia | Nov 4, 2019
...(“RICO”) action, see OCGA §
16-14-1 et seq., for multiple acts of
racketeering, including attempted theft by extortion, in violation of
OCGA §
16-8-16; attempted bribery, in violation of OCGA §
16-10-2;
intimidation of a court officer, in violation of OCGA §
16-10-97;
influencing witnesses, in violation of OCGA §
16-10-93; and
employing interstate travel, in concert with others, to deliberately
3 There was also evidence that Farmer had told Wife, with regard to the
custody case, that he...
