The Atlanta Gleaner.

POWELL v. THE STATE. SCOTT, No. S24A0239, 2024 WL 1862075 (Ga. Apr. 30, 2024)
#Brady Discovery Violations #general demurrer #OCGA § 16-10-1 #violating oath of office #…where’s my union money going?!!?

Opinion

In these appeals—which have been consolidated for purposes of issuing an opinion—we decide whether an indictment charging two former police officers with violations of their oaths of office under OCGA § 16-10-1 by failing to conduct investigations of other police officers in purported violation of Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963), is sufficient to withstand the general demurrers filed in the case below. [1] For the reasons that follow, we conclude that the indictment at issue is not sufficient to withstand the general demurrers and violates federal constitutional due process, and thus, the trial court's order denying the general demurrers to the indictment should be reversed.

1. Appellant John Powell, formerly the Chief of Police of Glynn County, and Appellant Brian Scott, formerly Powell's Chief of Staff, were indicted together in the Superior Court of Glynn County for violation of their oaths as public officers for allegedly violating Brady by failing to promptly investigate certain allegations of police misconduct, failing to conduct an internal affairs investigation into this alleged conduct, and/or failing to take other administrative action related to this alleged conduct. [2] Specifically, in Count 1 of the indictment, Powell and Scott were jointly charged with “willfully and intentionally” violating the terms of their oaths of office under OCGA § 16-10-1 in the following manner:

in that they did fail to uphold the Constitution of the United States, which provides in Article VII, Amendment V, that no person shall be deprived of life, liberty, or property without due process, as interpreted by the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and the said accused, after being shown a photograph of Glynn County Investigator John Dustin Simpson of the Glynn/Brunswick Narcotics Enforcement Team, hereinafter referred to as GBNET, posing with Brian Highsmith, a convicted felon for Possession With Intent to Distribute Methamphetamine, and being informed that John Dustin Simpson and Brian Highsmith maintain a close personal relationship, and said relationship being a violation of GBNET and Glynn County Police Department, ... fail[ing] to promptly investigate said allegations and fail[ing] to timely conduct an Internal Affairs investigation of said allegations. ...

In Count 2 of the indictment, Powell was individually charged with “willfully and intentionally” violating the terms of his oath of office under OCGA § 16-10-1 in the following manner:

in that he did fail to uphold the Constitution of the United States, which provides in Article VII, Amendment V, that no person shall be deprived of life, liberty, or property without due process, as interpreted by the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and the said accused, after being notified by the Camden County Sheriff, Jim Proctor, that Glynn/Brunswick Narcotics Enforcement Team officers, hereinafter referred to as GBNET, were working undercover drug investigations in Camden County, Georgia without any legal authority to conduct said investigations, ... fail[ing] to initiate an Internal Affairs investigation into said conduct and [ ] fail[ing] to take any administrative action in regard to the GBNET personnel involved in Camen County. ...

In Count 3 of the indictment, Powell was individually charged with “willfully and intentionally” violating the terms of his oath of office under OCGA § 16-10-1 in the following manner:

in that he did fail to uphold the Constitution of the United States, which provides in Article VII, Amendment V, that no person shall be deprived of life, liberty, or property without due process, as interpreted by the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and the said accused, after being notified by McIntosh County Sheriff, Steve Jessup, that Colonel Danny Lowe of the McIntosh County Sheriff's Office had been stopped and detained by Glynn County law enforcement officers with the assistance of Glynn/Brunswick Narcotics Enforcement Team officers, hereinafter referred to as GBNET, on two different occasions and under questionable circumstances, ... fail[ing] to initiate an Internal Affairs investigation into said traffic stop and [ ] fail[ing] to identify the GBNET officers involved in said traffic stop, and [ ] fail[ing] to take any administrative action against any personnel involved in said traffic stop. ...

In Count 4 of the indictment, Powell was individually charged with “willfully and intentionally” violating the terms of his oath of office under OCGA § 16-10-1 in the following manner:

in that he did fail to uphold the Constitution of the United States, which provides in Article VII, Amendment V, that no person shall be deprived of life, liberty, or property without due process, as interpreted by the U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and the said accused, after being notified that Glynn/Brunswick Narcotics Enforcement Team officers, hereinafter referred to as GBNET, were working as law enforcement officers in the State of Florida, without any legal authority to do so, and that the GBNET officers requested a Glynn County Police Officer Kevin Yarborough to effect a traffic stop on a specific vehicle, and later requested that the Glynn County Police Officer Kevin Yarborough omit from his official report involving a fatality that GBNET officers had fact initiated the traffic stop, ... fail[ing] to initiate an Internal Affairs investigation into the conduct of the GBNET officers and [ ] fail[ing] to take any administrative action against any personnel involved. ...

In November 2021, Powell and Scott each filed a general demurrer to the indictment, [3] asserting, among other things, that the indictment…

• (1) “fails to adequately charge [Powell and Scott] with any offense against the laws of the State of Georgia;”

• (2) does not form “the bases for a felony criminal offense and therefore cannot be conduct amounting to a violation of [their] oath of office;”

• and (3) “fails to set forth any description of the way the alleged conduct of the accused ... violates the United States Constitution as interpreted by the U.S. Supreme Court in Brady v. Maryland.” Powell and Scott also asserted that the oath-of-office statute, OCGA § 16-10-1, was “unconstitutionally vague” as applied to the facts of this case.

At the hearing on the general demurrers, Powell and Scott argued that the indictment should be dismissed because they could admit all the facts alleged therein and not be guilty of any crimes. To that end, Powell and Scott again argued that the indictment fails to allege any facts constituting a crime; fails to allege any conduct amounting to a Brady violation; and fails to identify a particular case or a particular defendant whose case has been affected by a Brady violation or whose federal constitutional rights have been violated. The State argued that “[t]here were numerous cases of people denied their liberty” or “denied their life” by the acts and/or omissions of Powell and Scott, but the State did not identify any such cases. In response, Powell and Scott reiterated that the State had failed to specify any pending criminal cases that had allegedly been impacted by a Brady violation on their part, and they argued that their federal due process rights would be violated if the State was allowed “to stray from the terms of the indictment” by prosecuting them based upon cases, actions, or incidents that were not included in the indictment.

The trial court denied the general demurrers, concluding that, if Powell and Scott were to admit the allegations in the indictment, the “admission of these allegations would constitute conduct violative of the oaths of office taken by [Powell and Scott]” and further determining that, even if “the underlying conduct charged was not per se criminal under Georgia law, ... the conduct alleged, if proven true, would constitute conduct not only grossly inconsistent with that imposed upon [Powell and Scott] by their oaths, but also going to the very heart of the obligations they assumed when they took their oaths.” [4]

2. We review a trial court's ruling on a general demurrer “de novo in order to determine whether the allegations in the indictment are legally sufficient.” State v. Mondor, 306 Ga. 338, 341 (1) (830 SE2d 206) (2019) (citation and punctuation omitted). Having done so, we agree with Powell and Scott that the trial court's ruling regarding the sufficiency of the indictment was erroneous, and their general demurrers should have been granted.

“As a general matter, a demurrer (whether general or special) must allege some flaw on the face of the indictment itself,” and “a court cannot go beyond the four corners of the indictment in considering a demurrer.” State v. Williams, 306 Ga. 50, 53 (2) (829 SE2d 117) (2019). See also Bullard v. State, 307 Ga. 482, 486 (2) n.5 (837 SE2d 348) (2019) (noting that “the trial court could not look beyond the four corners of the indictment in considering [the defendant's] demurrer”).

To assess the merits of a general demurrer, which challenges the sufficiency of the substance of the indictment, a court asks whether the defendant can admit each and every fact alleged in the indictment and still be innocent of any crime. If so, the general demurrer should be sustained. But if the admission of the facts alleged would lead necessarily to the conclusion that the accused is guilty of a crime, the indictment is sufficient to withstand a general demurrer. Williams, 306 Ga. at 52 (2) (citation and punctuation omitted; emphasis in original).

Framed another way, this Court has held that, if an indictment “recite[s] the language of the statute that sets out all the elements of the offense charged or allege[s] the facts necessary to establish a violation of a criminal statute, then the indictment is sufficient to withstand a general demurrer.” Mondor, 306 Ga. at 341 (1) (citing Jackson v. State, 301 Ga. 137, 141 (1) (800 SE2d 356) (2017)).

Here, the indictment lays out the elements of the statutorily-defined crime of violation of oath of office by a public officer. See OCGA § 16-10-1 (“[a]ny public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.”). The indictment also specifies which term of the oath of office Powell and Scott allegedly violated—their obligation “to uphold the Constitution of the United States”—and which specific provision thereof—Article VII, Amendment V of the United States Constitution as interpreted by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963). As such, the indictment satisfies the general demurrer standard as set forth in Mondor and Jackson insofar as it “recite[s] the language of the statute that sets out all the elements of the offense charged.” Mondor, 306 Ga. at 341 (1). See also Jackson, 301 Ga. at 139 (1) (“[T]o withstand a general demurrer, an indictment must ... recite the language of the statute that sets out all the elements of the offense charged[.]”).

However, under these circumstances, if the indictment here only recited “the language of the statute that sets out all the elements of the offense charged”—and therefore satisfied the general demurrer standard, Mondor, 306 Ga. at 341 (1)—the indictment would not be sufficient to withstand a special demurrer, which “challenges the sufficiency of the form of the indictment.” Kimbrough v. State, 300 Ga. 878, 880 (2) (799 SE2d 229) (2017) (citation and punctuation omitted; emphasis in original). “By filing a special demurrer, the accused claims ... that the accused is entitled to more information.” Id. at 880-881 (2) (citation and punctuation omitted). When considering an indictment under a special demurrer challenge,

[w]e have held that an indictment not only must state the essential elements of the offense charged, but it also must allege the underlying facts with enough detail to sufficiently apprise the defendant of what he must be prepared to meet. As we have explained, when a court considers whether an indictment is sufficient to withstand a special demurrer, it is useful to remember that a purpose of the indictment is to allow a defendant to prepare her defense intelligently. Id. at 881 (2) (citations and punctation omitted; emphasis supplied). [5]

Applying those principles here, the indictment at issue charges Powell and Scott with “willfully and intentionally” violating the terms of their oath of office under OCGA § 16-10-1 by failing to uphold the due process clause of the United States Constitution as interpreted by Brady. Brady stands for the proposition that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. This Court has explained that Brady “does not require the pre-trial disclosure of exculpatory evidence,” Davis v. State, 261 Ga. 382, 385 (8) (b) (405 SE2d 648) (1991) (citation omitted; emphasis supplied), and does not impose a duty upon the State to investigate. See Brown v. State, 250 Ga. 66, 74 (6) (295 SE2d 727) (1982); Hines v. State, 249 Ga. 257, 258-259 (1) (290 SE2d 911) (1982); Baker v. State, 245 Ga. 657, 661-662 (3) (266 SE2d 477) (1980); Rini v. State, 236 Ga. 715, 718 (4) (225 SE2d 234) (1976); Hicks v. State, 232 Ga. 393, 394-395 (207 SE2d 30) (1974). We have held that, for a criminal defendant to establish a Brady violation, the following four factors must be met:

(1) the State possessed evidence favorable to [the accused's] defense; (2) [the accused] did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the trial would have been different. Davis v. State, 316 Ga. 418, 425 (4) (c) (888 SE2d 546) (2023) (citation and punctuation omitted).

As explained above, to withstand a general demurrer in this case, the State was not required to allege any additional facts in the indictment beyond the statutory elements of OCGA § 16-10-1, but the State generally must allege additional facts to survive a special demurrer. Here, the State alleged additional facts, but those facts—namely, that Powell and/or Scott violated the terms of their oaths of office by committing Brady violations through their failures to investigate and undertake the administrative actions alleged in Count 1 through 4 of the indictment—are inconsistent with the criminal statute as pleaded and negate the manner in which Powell and Scott purportedly violated the terms of their oaths of office. In other words, here, the indictment alleges that Powell and Scott committed these crimes in a specific way. If Powell and Scott admit to that, they are still innocent of the alleged crimes because it is legally impossible to commit the crimes in the way the State alleged in the indictment.

When we review the sufficiency of an indictment, “we read the indictment as a whole.” Sanders v. State, 313 Ga. 191, 196 (3) (a) (ii) (869 SE2d 411) (2022). We most often rely on this principle to uphold an indictment where one count does not include sufficient details, but those details are provided in other counts of the indictment. See id. (determining that an indictment survived a demurrer because, although the conspiracy count of the indictment failed to identify a co-conspirator or overt act in furtherance of the conspiracy, “the alleged deficiencies [were] addressed” in another count of the indictment). See also State v. Wyatt, 296 Ga. 257, 260-261 (1) (b) (759 SE2d 500) (2014) (observing that “[w]e will consider each felony murder count and its underlying felony count together, and examine whether the entirety of the indictment provides sufficient detail about the crimes [the defendant] is accused of committing” so as to put the defendant on notice of what he will have to defend against at trial). However, here, this principle leads us to conclude that, where the details provided in each count actually negate the elements of the crimes charged, the indictment is not sufficient to withstand a general demurrer because Powell and Scott “can admit each and every fact alleged in the indictment and still be innocent of” the crimes alleged by the State. Williams, 306 Ga. at 52 (2). And, although we have not articulated this specific rule before, it is consistent with our case law.

Accordingly, in this case—even assuming (without deciding) that a Brady violation could form the basis of a violation of oath of office charge—the facts as alleged in this indictment do not support such a charge because Powell's and Scott's purported failures to investigate and undertake the administrative actions alleged in Counts 1 through 4 of the indictment are not Brady violations. [6] See Davis, 261 Ga. at 385 (8) (b). See also Mondor, 306 Ga. at 341 (1). We thus conclude that the indictment against Powell and Scott “cannot withstand a general demurrer,” Mondor, 306 Ga. at 341 (1) (citation and punctuation omitted), and therefore, the trial court's denial of Powell's and Scott's general demurrers to the indictment is reversed. And, because we have concluded that this indictment cannot withstand a general demurrer, we need not reach Powell's and Scott's constitutional challenge or the speedy-trial issue also before us on appeal. [7]

Judgment reversed. All the Justices concur.

All Citations

--- S.E.2d ----, 2024 WL 1862075