CopyCited 23 times | Published | Supreme Court of Georgia | Feb 16, 2001 | 273 Ga. 466, 2001 Fulton County D. Rep. 647
...Nichols, Assistant District Attorneys, Thurbert E. Baker, Attorney General, for appellee. Cook, Noell, Tolley, Bates & Michael, Edward D. Tolley, Ronald E. Houser, Athens, Grady K. Dukes, Southern States Police Benevolent Association, Inc., McDonough, amicus curiae. HINES, Justice. OCGA §
17-7-52 [1] affords certain rights, including the right to be prosecuted only upon a grand jury indictment, to peace officers charged with committing a crime alleged to have occurred while in the performance of the peace officer's duties. We granted certiorari to the Court of Appeals in Dudley v. State,
242 Ga.App. 53,
527 S.E.2d 912 (2000), to consider whether, for purposes of entitlement to the benefits of OCGA §
17-7-52, the status of peace officer is determined at the time that the State files an accusation or seeks an indictment, rather than at the time that the alleged crime took place. We conclude, contrary to the Court of Appeals, that the protections of OCGA §
17-7-52 extend to a peace officer charged with criminal misdeeds in office, but who is no longer employed as a peace officer when the criminal *101 proceedings against that individual are commenced....
...The Court of Appeals concluded, inter alia, that the trial court did not err in denying Dudley's challenge to his prosecution upon the accusation inasmuch as Dudley was not a police officer at the time of commencement of the prosecution. [2] But the Court of Appeals incorrectly construed OCGA §
17-7-52 to require that it look to Dudley's status at the time of prosecution rather than at the time of alleged commission of the criminal acts. Judicial construction is inappropriate when the language of a statute is plain and unequivocal. Fleming v. State,
271 Ga. 587, 589,
523 S.E.2d 315 (1999). OCGA §
17-7-52(a) states that the peace officer "shall be afforded the rights provided in Code Section
45-11-4." [3] Thus, the General Assembly has seen fit to afford to peace officers, without apparent limitation, the enhanced protections given to other...
...o longer in office by the time of prosecution is reaffirmed by the later statement in OCGA §
45-11-4 regarding punishment if the accused is convicted and "if still in office." In finding that the time of prosecution controlled applicability of OCGA §
17-7-52, the Court of Appeals relied on its holdings in Gober v....
...682,
394 S.E.2d 559 (1990), and Axson v. State,
174 Ga.App. 236,
329 S.E.2d 566 (1985). But its reliance on these earlier decisions was misplaced. In Lundy, the Court of Appeals rejected the peace officer's contention that he should have been accorded the benefits of OCGA §
17-7-52 based on its determination that the issue was controlled by its earlier holding in Axson....
...t. Peachtree-Cain Co. v. McBee,
254 Ga. 91, 93,
327 S.E.2d 188 (1985). Thus, when the General Assembly in 1990 modified OCGA §
45-11-4 to, inter alia, make plain that its protections encompassed those formerly in office, it fully realized that OCGA §
17-7-52 mandated that such protections be extended to peace officers. The Court of Appeals cited the statement in Lundy that the purpose of OCGA §
17-7-52 is to prevent officials "from being distracted from the performance of their duties while they defend themselves against baseless charges." Lundy at 683(1),
394 S.E.2d 559....
...such at the time of prosecution. [4] Moreover, determination of status as a peace officer at the time the alleged wrongful act occurred rather than at the time of the accusation or indictment for the purpose of entitlement to the protections of OCGA §
17-7-52 comports with the general precept of criminal jurisprudence that the provisions of the law existing at the time of commission of a crime control....
...erage citizen is manifestly unfair, and that an officer who is charged with committing a criminal misdeed in the performance of duty and who is later terminated or resigns should not, as a matter of public policy, be afforded the protections of OCGA §
17-7-52....
...innocent until proven guilty. Accordingly, the judgment of the Court of Appeals is reversed and this case is returned to the Court of Appeals for consideration consistent with this opinion. Judgment reversed. All the Justices concur. NOTES [1] OCGA §
17-7-52, as amended effective July 1, 1997, provides: (a) Before an indictment against a peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a...
...(b) The requirements of subsection (a) of this Code section shall apply to all prosecutions, whether for misdemeanors or felonies, and no such prosecution shall proceed either in state or superior court without a grand jury indictment. [2] The parties devote considerable argument to other reasons why OCGA §
17-7-52 should or should not apply to Dudley, including whether the statute may be applied retroactively, whether Dudley's criminal acts can be deemed to have been done in the performance of his duties as a police officer, and whether Dudley waived any objection to the accusation filed against him. However, the sole question before this Court on certiorari is the correctness of the Court of Appeals' determination that the applicability of OCGA §
17-7-52 is dependent on the time of prosecution....
CopyCited 20 times | Published | Supreme Court of Georgia | Jan 30, 2006 | 280 Ga. 268, 2006 Fulton County D. Rep. 286
...The question for decision in this granted certiorari is whether a police officer, who was indicted and charged with false writings and statements, and the violation of his oath as a public officer, should have been afforded the rights of notice and the opportunity to appear before the grand jury pursuant to OCGA §§
17-7-52 and
45-11-4....
...and comply with his demands for sex, [lied] to officials of the GBI during a criminal investigation, and committ[ed] crimes against the State while on duty." Wiggins moved to dismiss the indictment, asserting he was not given notice pursuant to OCGA §
17-7-52....
...[2] We granted a writ of certiorari to the Court of Appeals and posed this question: Did the Court of Appeals err by affirming the trial court's denial of defendant's motion to dismiss the indictment on the basis *120 that the indictment was filed against the defendant without proper notice pursuant to OCGA §
17-7-52 where the defendant, a peace officer, was charged with the crimes of false writings and statements, OCGA §
16-10-20, and violation of oath of public office, OCGA §
16-10-1? We answer our inquiry in the affirmative. 1. OCGA §
17-7-52(a) provides: Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the of...
...t pertained to the completion of his daily activity sheet. See, e.g., State v. Lockett,
259 Ga.App. 179, 181,
576 S.E.2d 582 (2003) (on duty police officer charged with speeding and driving too fast for conditions was entitled to rights under OCGA §§
17-7-52 and
45-11-4); State v....
...233, 234(2),
283 S.E.2d 89 (1981) (correctional officers who were charged with involuntary manslaughter because they confined a prisoner under conditions which led to his death by heat prostration did not step aside from the performance of their duties). Thus, Wiggins was entitled to the protections afforded by OCGA §§
17-7-52 and
45-11-4 with regard to the false writings and statements count. 2. Pointing out that the indictment was couched in multiple counts, and that only one count, the false writings and statements count, gives rise to the rights set forth in OCGA §§
17-7-52 and
45-11-4, the State asserts the judgment of the Court of Appeals should be upheld with regard to the remaining counts of the indictment. We agree. The indictment in this case contained a number of distinct and separate counts. Wiggins was acquitted on some of the counts; he was convicted on others. The rights afforded by OCGA §§
17-7-52 and
45-11-4 apply only to one of the counts upon which Wiggins was convicted and the judgment of the Court of Appeals must be reversed with regard to that count....
...on the other." We find Lee to be analogous and instructive here. Wiggins was charged with numerous offenses in a multi-count indictment. Only one of the counts, the false writings and statements count, gave rise to the protections afforded by OCGA §§
17-7-52 and
45-11-4....
CopyCited 11 times | Published | Supreme Court of Georgia | Oct 11, 2023
...The State alleges through
indictments of the defendants for felony murder and other crimes
that the defendants beat, pepper sprayed, and repeatedly shocked
May with an electronic taser, thereby causing his death. Claiming
entitlement to the pre-indictment protections afforded to “peace
officers” under OCGA §
17-7-52, the defendants sought to quash
their indictments on the basis that they did not receive pre-
indictment notice and an opportunity to be heard.
The trial court held an evidentiary hearing on the matter and
thereafter entered an order quashing the indictments. The trial
court’s analysis turned on whether the defendants were “peace
officers,” as that term is used in OCGA §
17-7-52....
...he control and
supervision of inmates at the jail, the trial court determined that the
defendants were “vested with a duty to maintain public order, i.e.,
keep the peace,” and, as such, were peace officers entitled to the
protections of OCGA §
17-7-52....
...things, “an order, decision, or judgment setting aside or dismissing
any indictment”).
This appeal presents two issues for our consideration. We must
determine, first, whether the trial court properly defined “peace
officer” for purposes of OCGA §
17-7-52 and, second, whether the
trial court erred by finding that the defendants here fall within that
definition....
...As to the second issue, we conclude
that the trial court erred by finding that the defendants’ duty to
control and supervise inmates within the jail constitutes a duty to
maintain the public peace. Accordingly, we reverse.
1. We first address what is meant by “peace officer” in OCGA §
17-7-52....
...“Thus, we construe statutes in
connection and in harmony with the existing law, and as part of a
general and uniform system of jurisprudence.” (Citation and
punctuation omitted.) Id. at 143-144 (2). Guided by these principles,
we turn to the statutory text at issue.
OCGA §
17-7-52 (a) provides:
Before a bill of indictment or special presentment
against a present or former peace officer charging the
officer with a crime which is alleged to have occurred
while he or she was in the performanc...
...is presented to a grand jury, the officer shall be given a
copy of the proposed bill of indictment or special
presentment and notified in writing of the contemplated
action by the prosecuting attorney. . . .
5
OCGA §
17-7-52 does not define “peace officer,” and it is not
otherwise defined within Title 17. The term is, however, defined
elsewhere in our Code. The parties’ arguments on appeal, as well as
the trial court’s ruling, focus on determining which of these
statutory definitions of “peace officer” may be applicable to OCGA §
17-7-52....
...the
defendants maintain that the trial court properly applied the
definition in OCGA §
16-1-3 (11).2 But the statutory text contradicts
the parties’ arguments and precludes the mechanical importation of
these independent definitions into OCGA §
17-7-52....
...As the State notes, several definitions require a person to
have “the power of arrest” in order to be deemed a “peace officer” under that
statute. But the State does not identify which of the five definitions should be
applied in the context of OCGA §
17-7-52; instead, it simply asserts that the
defendants do not meet any of those definitions.
2 OCGA §
16-1-3 (11) says: “[A]ny person who by virtue of his office or
public employment is vested by law with a duty to maintain public order or to
make arrests for offenses, whether that duty extends to all crimes or is limited
to specific offenses.”
6
application by their express language,3 and OCGA §
17-7-52 does not
incorporate by reference any independent statutory definition of
“peace officer.”4 This is not to say that these statutory definitions are
without significance; they can — and do — provide important
context to our ordinary-meaning analysis....
...See The American Heritage Dictionary of
the English Language 963 (1973) (defining “peace officer” as “[a] law
officer, such as a sheriff, responsible for maintaining civil peace”);
Webster’s New Twentieth Century Dictionary of the English
5 See Ga. L. 1975, p. 607, § 1. OCGA §
17-7-52 has been amended several
times since 1975, and each version has used the term “peace officer.” See Ga.
L....
...of arresting
both for offenses against the State and those against municipal
ordinances. He partakes both of the nature of a constable, and a
watchman at common law, with such added powers as may result
from legislation.”).10
When OCGA §
17-7-52 was enacted in 1975, the common-law
connection between peace officers and the duty to maintain public
10 See also Graham v....
...Because these statutory definitions invariably incorporate
the duty to maintain the public peace, they also reflect, whether
explicitly or implicitly, the common law’s consistent recognition that
the arrest power is integral to the performance of that duty.
Having reviewed the background upon which OCGA §
17-7-52
was enacted, what do we make of it all? There can be no question
that a peace officer is, at bottom, an officer vested by law with the
duty to maintain the public peace....
...analysis because the trial court found that the defendants here do
not have arrest powers12 and because, as we will discuss, the
defendants do not have a duty to maintain the public peace.
2. Having determined the basic meaning of “peace officer” for
purposes of OCGA §
17-7-52, we turn next to consider whether the
trial court erred by finding that the defendants, who maintained
11 For example, we have deemed the presence of statutory arrest powers
pertinent, but not dispositive, in the context of dete...
...confined to the jail, and then summarily conclude that they have arrest powers.
But the defendants point to no controlling authority — and we are aware of
none — holding that the authority they maintain over jail inmates establishes
that they have arrest powers for purposes of OCGA §
17-7-52.
17
order within the jail, meet that definition.13 We begin and end our
inquiry with the duty to maintain public peace.14
We have not previously identified what considerations may be
relevant to whether a person asserting peace-officer status under
OCGA §
17-7-52 is charged with maintaining the public peace....
...nd freedom from
disturbance which is guaranteed by the law.” Bd. of Commrs. of
Peace Officers Annuity & Benefit Fund v. Clay,
214 Ga. 70, 72 (1)
13 As we noted at the outset, in defining “peace officer” as the term is
used in OCGA §
17-7-52, the trial court traversed the wrong analytical path
but nevertheless reached the right definitional destination....
...controlling a defined population of inmates was markedly limited in
comparison to a traditional peace officer’s and because they had no
duty to maintain the public peace in a general sense, we conclude
that the trial court erred by deeming them peace officers under
OCGA §
17-7-52....
CopyCited 7 times | Published | Supreme Court of Georgia | Jan 25, 2010 | 688 S.E.2d 348, 2010 Fulton County D. Rep. 183
Hines, Justice.
We granted certiorari to the Court of Appeals in Smith v. State,
297 Ga. App. 300 (676 SE2d 750) (2009), to consider whether an individual afforded the protections of OCGA §§
17-7-521 and 45-11-42 is entitled to specific notice of when the proposed indictment will be presented to the grand jury....
...On February 23, 2007, Smith filed several motions in response to the indictment, including a plea in abatement and motion to dismiss on the ground that he was not informed when the proposed indictment would be presented to the grand jury, and therefore, that he was deprived of the rights provided in OCGA §§
17-7-52 and
45-11-4....
...Subsequently, the trial court denied Smith’s motion for new trial and Smith appealed to the Court of Appeals, challenging, inter alia, the denial of his plea in abatement and motion to dismiss the indictment. The Court of Appeals held that when an individual is entitled to the protections of OCGA §§
17-7-52 and
45-11-4, the State must provide that individual with notice of when the proposed indictment will be presented to the grand jury; it determined that the State failed to notify Smith when the proposed indictment would be presented,5 and consequently, it directed that Smith’s convictions be set aside.6
The legal conclusion of the Court of Appeals is sound. Certainly, neither OCGA §
17-7-52 nor OCGA §
45-11-4, individually or in conjunction, contains an express requirement that the accused peace officer is to receive notice of the specific time that the State will make its presentation to the grand jury....
...e officials do not have such protection, their reputation and performance of their duties could be compromised while they are defending baseless charges. State v. Deason,
259 Ga. 183, 184 (378 SE2d 120) (1989). And it is plain, that by enacting OCGA §
17-7-52, the General Assembly intended to afford peace officers the enhanced protections given to other public officials regarding accusations arising from the performance or nonperformance of their official duties. Dudley v. State,
273 Ga. 466, 467 (542 SE2d 99) (2001); Mize v. State,
152 Ga. App. 190, 191 (1) (262 SE2d 492) (1979). Thus, the legitimate purpose of OCGA §
17-7-52, in conjunction with OCGA §
45-11-4, is to protect peace officers from harassing or frivolous charges before the grand jury....
...Thus, contrary to the State’s assertion, timely serving the accused with a copy of the proposed bill of indictment but failing to timely inform the accused of when and where the reckoning with the grand jury will occur, is not substantial compliance with the requirements of OCGA §§
17-7-52 and
45-11-4 in regard to notification to the accused.
Decided January 25, 2010.
Denise D....
...le notice, that is, notice calculated to provide the accused a fair and full opportunity to exercise the rights provided by OCGA §
45-11-4 (g).7
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
All the Justices concur.
OCGA §
17-7-52 provides:
(a) Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the...
CopyCited 4 times | Published | Supreme Court of Georgia | Mar 8, 2022
...with the Atlanta
Police Department, with crimes connected to a June 2016 on-duty
shooting. Burns filed a “Plea in Abatement/Motion to Quash
Indictment” arguing that the State failed to provide him his
substantive rights under former OCGA §§
17-7-52 and
45-11-4. The
trial court denied the motion. We granted Burns’s application for
an interlocutory appeal to review whether the 2016 amendments to
OCGA §§
17-7-52 and
45-11-4 applied when an indictment was
sought after the effective date of the amendments with respect to
crimes allegedly committed prior to the effective date. While we
disagree with the trial court’s reasoning in denying Burns’s motion,
we agree that the 2016 amendments at issue apply to Burns’s
prosecution, so we affirm the judgment of the trial court.
1. Prior to July 1, 2016, OCGA §§
17-7-52 and
45-11-4
provided public officials with certain special rights regarding grand
jury proceedings. Former OCGA §
17-7-52 (a) provided that, before
an indictment charging a peace officer with a crime could be
returned by a grand jury, “the officer shall be notified of the
contemplated action by the district attorney of the county wherein
the grand jury shall convene and the officer shall be afforded the
rights provided in Code Section
45-11-4.” OCGA §
17-7-52 (a) (2001).
In turn, former OCGA §
45-11-4 (f) required that a copy of the
indictment be served on the accused officer at least 15 days before
presentment to the grand jury....
...Former OCGA §
45-11-4 (g), (h).
The General Assembly amended these statutes effective July
1, 2016. See Ga. L. 2016, pp. 186, 190-193. The legislature removed
subsections (f), (g), and (h) of OCGA §
45-11-4 and substantially
amended OCGA §
17-7-52. Relevant here, the 2016 amendment to
OCGA §
17-7-52 requires that a copy of the indictment be served on
the accused officer at least 20 days before presentment to the grand
jury. See OCGA §
17-7-52 (a). The officer must be given notice
“[t]hat he or she may request, but cannot be compelled, to testify as
a witness before the grand jury regarding his or her conduct[.]”
OCGA §
17-7-52 (a) (3)....
...If the officer chooses to testify, “[t]he
prosecuting attorney shall, after consulting with the grand jury,
inform the officer in writing of the date and time when he or she
3
shall be present in order to testify and of the procedure that the
grand jury will follow[.]” OCGA §
17-7-52 (b)....
...The officer “will be
permitted to [testify] at the conclusion of the presentation of the
state’s case-in-chief” and will also be further notified “that he or she
may be questioned by the prosecuting attorney or members of the
grand jury as are any other witnesses.” OCGA §
17-7-52 (a) (4).
If the officer requests to testify as a witness before the grand
jury, “he or she shall only be present in the grand jury room while
he or she is testifying. Such officer may be questioned by the
prosecuting attorney or members of the grand jury as are any other
witnesses.” OCGA §
17-7-52 (d)....
...(4) “[a]ny testimony given by the officer may be used against him or
her by the grand jury or in a subsequent legal proceeding”; and (5)
the officer’s attorney “shall have the right to be present in the grand
jury room” during the officer’s testimony. OCGA §
17-7-52 (d) (1)-
(5). The officer may make a sworn statement before being asked any
questions, but “[t]he officer’s attorney shall not propound questions
to the officer nor object to questions propounded to the officer on
evidentiary grounds.” OCGA §
17-7-52 (e). Finally, “[a]t the
conclusion of the officer’s testimony, if any, the prosecuting attorney
may present rebuttal evidence and advise the grand jury on matters
of law.” OCGA §
17-7-52 (f).
2. By way of background, Burns was on duty as a police
officer on June 22, 2016, when he allegedly shot and killed Deravis
Rogers in Fulton County. On August 5, 2016, the District Attorney
provided Burns notice under former OCGA §§
17-7-52 and
45-11-4
of the District Attorney’s intent to present evidence to a grand jury
of offenses arising out of the June 2016 shooting incident....
...requesting that the superior court prevent the District Attorney
from proceeding to the grand jury without complying with the
6
District Attorney’s statutory responsibilities under the former
versions of OCGA §§
17-7-52 and
45-11-4....
...and two counts of violation of oath by public officer. Burns
subsequently filed a “Plea in Abatement/Motion to Quash
Indictment,” arguing that, because the shooting incident occurred
before the July 1, 2016 effective date of the amendments to OCGA
§§
17-7-52 and
45-11-4, the State was required to follow the prior
version of the statutes....
...grand jury and to make a statement without being subjected to
cross-examination. He further alleged that the District Attorney’s
application of the 2016 amendments to Burns’s 2018 grand jury
proceedings retroactively violated his substantive rights under
former OCGA §§
17-7-52 and
45-11-4, the Ex Post Facto provisions
7
of the United States and Georgia Constitutions and Georgia case
law....
...This Court
granted Burns’s application for an interlocutory appeal.
3. Burns argues that the trial court erred by failing to
properly analyze the issue of retroactivity pursuant to Deal.
Specifically, Burns argues that former OCGA §§
17-7-52 and 45-11-
4 created substantive, private rights, rather than substantive,
public rights, as found by the trial court....
...criminal offense that is alleged to have occurred prior to the
amendments’ effective date violates the constitutional prohibition
against retroactive laws. See Ga. Const. of 1983, Art. I, Sec. I, Par.
X. We disagree with both Burns and the trial court that former
OCGA §§
17-7-52 and
45-11-4 created substantive rights; however,
8
because the trial court reached the right result, we affirm the court’s
judgment....
...90 (475 SE2d 614)
(1996) (holding that the notice and service provisions of the Tort
Claims Act were procedural laws); Polito,
258 Ga. at 55 (explaining
that the rules of evidence are procedural in nature). Because the
2016 amendments to OCGA §§
17-7-52 and
45-11-4 are procedural,
and because the amended statutes were in effect at the time of
Burns’s grand jury proceeding,1 they governed that proceeding.
1 In this case, there were no indictments or grand jury proceedings
regarding Burns while the former versions of OCGA §§
17-7-52 and
45-11-4
were in effect....
...See
Lindsay,
255 Ga. App. at 469 (1) (a) (v) nn.21 & 22. Dudley, however,
did not distinguish between procedural and substantive laws.
13
Instead, Dudley simply held that the plain language of the 1997
version of OCGA §
17-7-52 expressly extended certain protections to
former peace officers....
...at 466-467.3 Accordingly,
Lindsay’s holding that the statutes at issue grant substantive rights
was incorrect as it conflicts with our precedent (as discussed above)
3 After the Court analyzed the plain meaning of the 1997 version of
OCGA §
17-7-52, we remarked in Dudley:
Moreover, determination of status as a peace officer at the
time the alleged wrongful act occurred rather than at the time of
the accusation or indictment for the purpose of entitlement to the
protections of OCGA §
17-7-52 comports with the general precept
of criminal jurisprudence that the provisions of the law existing at
the time of commission of a crime control.
Dudley,
273 Ga. at 468. This statement, however, did not purport to hold that
rights afforded by the 1997 version of OCGA §
17-7-52 were substantive in
nature....
...al right.
Therefore, it is overruled.
Turning to Peabody, the trial court referenced the following
two statements from that decision in its order: “[s]hould the State
elect to re-indict Peabody, the provisions of the 2016 version of
OCGA §
17-7-52 would clearly apply,” 343 Ga....
CopyCited 4 times | Published | Supreme Court of Georgia | Oct 16, 2017 | 806 S.E.2d 556
...As Olsen points out, the subjects of grand jury proceedings usually have no insight into the conduct of the proceedings because, in most cases, the subject has no right to be present. At the time of the proceeding in question, however, former OCGA §
17-7-52 permitted law enforcement officers facing criminal charges arising out of the performance of their duties to be present during the presentation of evidence to the grand jury, along with counsel.1 As a result, Olsen witnessed the presentati...
...Timmons, Assistant District Attorn eys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
Prior to its amendment in 2016 (see Ga. L. 2016, p. 186, § 6/HB 941), OCGA §
17-7-52 afforded the same rights to law enforcement officers facing grand jury charges as were afforded to certain municipal, county, and state officers to be present, along with counsel, at the presentation of evidence to a grand jury by OCGA §
45-11-4....
CopyCited 3 times | Published | Supreme Court of Georgia | Nov 30, 2016 | 794 S.E.2d 601
...trial court did not err in determining that the statute did not apply to him here.
However, there is one more statute relevant to the discussion of the applicability of former OCGA §
45-11-4 to Ellis’ case, and that is the former version of OCGA §
17-7-52. OCGA §
17-7-52 governs the *378procedures for bringing indictments against “peace officers,” and, under the former version of the statute, which was applicable at the time of Ellis’ trial:
Before an indictment against a present or former peace off...
...returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section
45-11-4.
Former OCGA §
17-7-52 (a).8 The former version of the statute went on to state:
The requirements of subsection (a) of this Code section shall apply to all prosecutions, whether for misdemeanors or felonies, and no such prosecution shall proceed either in state or superior court without a grand jury indictment.
Former OCGA §
17-7-52 (b).
As the CEO of DeKalb County, Ellis was not a “peace officer.” See, e.g., OCGA §
16-1-3 (11) (“ ‘Peace officer’ means any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all crimes or is limited to specific offenses”). Thus, the provisions of former OCGA §
17-7-52 did not apply to him. However, Ellis claims that, because former OCGA §
17-7-52 provided protections to “peace officers” under OCGA §
45-11-4 that were not provided to him as a “public officer” who was not specifically charged under subsection (b) of that statute, OCGA §
45-11-4 on its face violates his rights to substantive due process and equal protection....
...641, 645 (4) (a) (763 SE2d 447) (2014). In this regard, we find a rational basis for providing the additional procedural protections of former OCGA §
45-11-4 to “peace officers” charged with crimes alleged to have occurred while performing their official duties (see former OCGA §
17-7-52), while only providing such additional protections to “public officers” when they are specifically charged with a misdemeanor under former OCGA §
45-11-4 (b)....
...Under this test, a statute does not violate due process in substance as long as it “bear[s] a rational relationship to a legitimate objective of the government.” Id.
Barzey, supra,
295 Ga. at 645 (4) (a).
We have previously held that “the legitimate purpose of [former] OCGA §
17-7-52, in conjunction with [former] OCGA §
45-11-4, is to protect peace officers from harassing or frivolous charges before the grand jury.” State v....
...nt version of the statute.
The current version of the statute no longer includes language under subsection (a) to afford a peace officer with “the rights provided in Code Section
45-11-4.”
This is not to say that the current versions of OCGA §
17-7-52 and OCGA §
45-11-4, which are much different from the former versions of the statutes, do not also contain distinctions that are rational....
CopyCited 2 times | Published | Supreme Court of Georgia | May 7, 2001 | 546 S.E.2d 522
Thompson, Justice.
Defendant was convicted at trial on armed robbery and other charges. He appealed to the Court of Appeals and alleged numerous errors, including an equal protection challenge to the constitutionality of OCGA §
17-7-52.1 The Court of Appeals transferred defendant’s appeal to this Court.
This Court has exclusive appellate jurisdiction over all cases in which the constitutionality of a statute is called into question.2 However, there is no basis for jur...
...diction if an equal protection challenge to the constitutionality of a statute has been previously considered and rejected by this Court.3 In Lewis v. State,
255 Ga. 101, 106 (335 SE2d 560) (1985), this Court rejected the identical challenge to OCGA §
17-7-52,4 citing the legitimate purpose of the statute in protecting certain public servants from harassing or frivolous charges before the grand jury.5
As defendant’s challenge to OCGA §
17-7-52 provided the sole jurisdictional basis for this Court to hear this case at this time, and as that issue has been previously decided, we transfer this case to the Court of Appeals for review of the remainder of defendant’s enumerations of...
...II (1).
See Zepp v. Mayor & City of Athens,
255 Ga. 449, 451 (339 SE2d 576) (1986).
But see State v. Deason,
259 Ga. 183, 184, fn. 1 (378 SE2d 120) (1989) (rejecting due process challenge to OCGA §
45-11-4, and expressly noting that the constitutionality of OCGA §
17-7-52 was not before the court).
The Court also rejected equal protection challenges to OCGA §§
45-11-4 and
45-15-11, each of which sets out a narrow right to attend grand jury proceedings for certain public officials....
Published | Supreme Court of Georgia | Mar 8, 2022 | 546 S.E.2d 522
...with the Atlanta
Police Department, with crimes connected to a June 2016 on-duty
shooting. Burns filed a “Plea in Abatement/Motion to Quash
Indictment” arguing that the State failed to provide him his
substantive rights under former OCGA §§
17-7-52 and
45-11-4. The
trial court denied the motion. We granted Burns’s application for
an interlocutory appeal to review whether the 2016 amendments to
OCGA §§
17-7-52 and
45-11-4 applied when an indictment was
sought after the effective date of the amendments with respect to
crimes allegedly committed prior to the effective date. While we
disagree with the trial court’s reasoning in denying Burns’s motion,
we agree that the 2016 amendments at issue apply to Burns’s
prosecution, so we affirm the judgment of the trial court.
1. Prior to July 1, 2016, OCGA §§
17-7-52 and
45-11-4
provided public officials with certain special rights regarding grand
jury proceedings. Former OCGA §
17-7-52 (a) provided that, before
an indictment charging a peace officer with a crime could be
returned by a grand jury, “the officer shall be notified of the
contemplated action by the district attorney of the county wherein
the grand jury shall convene and the officer shall be afforded the
rights provided in Code Section
45-11-4.” OCGA §
17-7-52 (a) (2001).
In turn, former OCGA §
45-11-4 (f) required that a copy of the
indictment be served on the accused officer at least 15 days before
presentment to the grand jury....
...nsel.
Former OCGA §
45-11-4 (g), (h).
The General Assembly amended these statutes effective July
1, 2016. See 2016 Ga. L. pp. 190-193. The legislature removed
subsections (f), (g), and (h) of OCGA §
45-11-4 and substantially
amended OCGA §
17-7-52. Relevant here, the 2016 amendment to
OCGA §
17-7-52 requires that a copy of the indictment be served on
the accused officer at least 20 days before presentment to the grand
jury. See OCGA §
17-7-52 (a). The officer must be given notice
“[t]hat he or she may request, but cannot be compelled, to testify as
a witness before the grand jury regarding his or her conduct.” Id. §
3
17-7-52 (a) (3)....
...If the officer chooses to testify, “[t]he prosecuting
attorney shall, after consulting with the grand jury, inform the
officer in writing of the date and time when he or she shall be
present in order to testify and of the procedure that the grand jury
will follow.” Id. §
17-7-52 (b)....
...The officer “will be permitted to
[testify] at the conclusion of the presentation of the state’s case-in-
chief” and will also be further notified “that he or she may be
questioned by the prosecuting attorney or members of the grand jury
as are any other witnesses.” Id. §
17-7-52 (a) (4).
If the officer requests to testify as a witness before the grand
jury, “he or she shall only be present in the grand jury room while
he or she is testifying. Such officer may be questioned by the
prosecuting attorney or members of the grand jury as are any other
witnesses.” Id. §
17-7-52 (d)....
...(4) “[a]ny testimony given by the officer may be used against him or
her by the grand jury or in a subsequent legal proceeding”; and (5)
the officer’s attorney “shall have the right to be present in the grand
jury room” during the officer’s testimony. Id. §
17-7-52 (d) (1) – (5).
The officer may make a sworn statement before being asked any
questions, but “[t]he officer’s attorney shall not propound questions
to the officer nor object to questions propounded to the officer on
evidentiary grounds.” Id. §
17-7-52 (e). Finally, “[a]t the conclusion
of the officer’s testimony, if any, the prosecuting attorney may
present rebuttal evidence and advise the grand jury on matters of
law.” Id. §
17-7-52 (f).
2....
...By way of background, Burns was on duty as a police
officer on June 22, 2016, when he allegedly shot and killed Deravis
Rogers in Fulton County. On August 5, 2016, the District Attorney
5
provided Burns notice under former OCGA §§
17-7-52 and
45-11-4
of the D.A.’s intent to present evidence to a grand jury of offenses
arising out of the June 2016 shooting incident....
...The State then
sought to re-indict Burns. On August 15, 2018, the District Attorney
provided Burns with a copy of the new indictment and notice of the
D.A.’s intent to proceed with a grand jury hearing on September 5,
2018, pursuant to the 2016 versions of OCGA §§
17-7-52 and 45-11-
4....
...6
against the Fulton County District Attorney, requesting that the
superior court prevent the D.A. from proceeding to the grand jury
without complying with the D.A.’s statutory responsibilities under
the former versions of OCGA §§
17-7-52 and
45-11-4....
...and two counts of violation of oath by public officer. Burns
subsequently filed a “Plea in Abatement/Motion to Quash
Indictment,” arguing that, because the shooting incident occurred
before the July 1, 2016 effective date of the amendments to OCGA
§§
17-7-52 and
45-11-4, the State was required to follow the prior
version of the statutes....
...cross-examination. He further alleged that the District Attorney’s
application of the 2016 amendments to Burns’s 2018 grand jury
7
proceedings retroactively violated his substantive rights under
former OCGA §§
17-7-52 and
45-11-4, the Ex Post Facto provisions
of the United States and Georgia Constitutions, and Georgia case
law....
...This Court
granted Burns’s application for an interlocutory appeal.
3. Burns argues that the trial court erred by failing to
properly analyze the issue of retroactivity pursuant to Deal.
Specifically, Burns argues that former OCGA §§
17-7-52 and 45-11-
4 created substantive, private rights, rather than substantive,
public rights, as found by the trial court....
...amendments’ effective date violates the constitutional prohibition
against retroactive laws. See Ga. Const. of 1983, Art. I, Sec. I, Par.
8
X. We disagree with both Burns and the trial court that former
OCGA §§
17-7-52 and
45-11-4 created substantive rights; however,
because the trial court reached the right result, we affirm the court’s
judgment....
...90 (475 SE2d 614)
(1996) (holding that the notice and service provisions of the Tort
Claims Act were procedural laws); Polito,
258 Ga. at 55 (explaining
that the rules of evidence are procedural in nature). Because the
2016 amendments to OCGA §§
17-7-52 and
45-11-4 are procedural,
and because the amended statutes were in effect at the time of
Burns’s grand jury proceeding, 1 they governed that proceeding.
1 In this case, there were no indictments or grand jury proceedings
regarding Burns while the former versions of OCGA §§
17-7-52 and
45-11-4
11
Consequently, our analysis can end here.2
This conclusion is consistent with the precedent from this
Court....
...See
Lindsay,
255 Ga. App. at 469 nn.21 & 22 (1) (a) (v). Dudley, however,
13
did not distinguish between procedural and substantive laws.
Instead, Dudley simply held that the plain language of the 1997
version of OCGA §
17-7-52 expressly extended certain protections to
former peace officers. See Dudley,
273 Ga. at 466-467. 3 Accordingly,
After the Court analyzed the plain meaning of the 1997 version of
3
OCGA §
17-7-52, we remarked in Dudley:
Moreover, determination of status as a peace officer at the time the
alleged wrongful act occurred rather than at the time of the
accusation or indictment for the purpose of entitlement to the
protections of OCGA §
17-7-52 comports with the general precept
of criminal jurisprudence that the provisions of the law existing at
the time of commission of a crime control.
Dudley,
273 Ga. at 468. This statement, however, did not purport to hold that
rights afforded by the 1997 version of OCGA §
17-7-52 were substantive in
nature....
...al right.
Therefore, it is overruled.
Turning to Peabody, the trial court referenced the following
two statements from that decision in its order: “[s]hould the State
elect to re-indict Peabody, the provisions of the 2016 version of
OCGA §
17-7-52 would clearly apply,” 343 Ga....
