Procedure for Indictment or Special Presentment of Peace Officer for Crime in Performance of Duties; Notification; Rights of Officer

1. Law
2. Georgia Code
3. Criminal Procedure
4. Pretrial Proceedings
5. Indictments
6. Procedure for Indictment or Special Presentment of Peace Officer for Crime in Performance of Duties; Notification; Rights of Officer

1. 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 performance of his or her duties 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. Such notice and a copy of the proposed bill of indictment or special presentment shall be provided to such officer not less than 20 days prior to the date upon which a grand jury will begin hearing evidence, and such notice shall inform such officer:
   1. That the grand jury is investigating such officer's conduct to determine if there is probable cause to conclude that he or she has violated one or more laws of this state;
   2. Of the date upon which the grand jury will begin hearing testimony on the proposed bill of indictment or special presentment and the location of the hearing;
   3. That he or she may request, but cannot be compelled, to testify as a witness before the grand jury regarding his or her conduct; and
   4. That, if such officer requests to testify before the grand jury, he or she will be permitted to do so at the conclusion of the presentation of the state's case-in-chief and that he or she may be questioned by the prosecuting attorney or members of the grand jury as are any other witnesses.
2. If the officer requests to appear as a witness, he or she shall notify the prosecuting attorney any time prior to the date the grand jury will begin hearing testimony in such investigation. The 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 pursuant to subsection (c) of this Code section. The prosecuting attorney shall further advise the grand jury that an officer has the right to appear and testify or not to appear and testify and that, if the officer chooses not to testify, the grand jury shall not consider that in any way in making its decision.
3. Prior to the introduction of any evidence or the first witness being sworn, the prosecuting attorney shall advise the grand jury of the laws applicable to the conduct of such proceedings, all relevant sections of the Code relating to the crime or crimes alleged in the bill of indictment, and any Code section that excuses or justifies such conduct. In particular, the grand jury shall be advised of Code Sections 16-3-20, 16-3-21, 16-3-23.1, and 17-4-20.
4. If the officer requests to testify before the grand jury and appears at the date and time specified, the case shall proceed as in any other criminal case heard by a grand jury, except that the officer shall be permitted to testify at the conclusion of the presentation of the state's case-in-chief and that 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. After the officer has been sworn as a witness and prior to any testimony by the officer, the prosecuting attorney shall advise the officer substantially of the following:
   1. The officer's appearance before the grand jury is voluntary, and he or she cannot be compelled to appear as a witness;
   2. By agreeing to be sworn as a witness on the bill of indictment or special presentment that will be laid before the grand jury, he or she will be asked to testify and answer questions and may be asked to produce records, documents, or other physical evidence;
   3. The officer may refuse to answer any question or to produce records, documents, and other physical evidence if a truthful answer to the question or producing such records, documents, or other physical evidence would tend to incriminate the officer or would tend to bring infamy, disgrace, or public contempt upon the officer;
   4. Any testimony given by the officer may be used against him or her by the grand jury or in a subsequent legal proceeding; and
   5. If the officer is represented by an attorney, the attorney shall have the right to be present in the grand jury room while the officer is testifying, and the officer will be permitted reasonable opportunity to consult with his or her attorney outside the grand jury room.
5. After being sworn as a witness but prior to being asked any questions by the prosecuting attorney or the grand jurors, the officer may make such sworn statement as he or she shall desire. The officer's attorney shall not propound questions to the officer nor object to questions propounded to the officer on evidentiary grounds.
6. At 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.
7. At any time during the presentation of evidence or during deliberations, the grand jury may amend the bill of indictment or special presentment or instruct the prosecuting attorney to cause a new bill of indictment or special presentment to be created as in any other case. When a bill of indictment or special presentment is amended or newly created, the accused peace officer and his or her attorney shall be provided a copy of it.
8. No individual other than the jurors, and any interpreter needed to assist a hearing impaired or speech impaired juror, shall be present while the grand jury is deliberating or voting.
9. 1. As used in this subsection, the term "nonserious traffic offense" means any offense in violation of Title 40 which is not prohibited by Article 15 of Chapter 6 of Title 40.
   2. The requirements of this Code section shall apply to all prosecutions, whether for felonies or misdemeanors, other than nonserious traffic offenses, and no such prosecution shall proceed either in state or superior court without a grand jury indictment or special presentment.

(Ga. L. 1975, p. 607, § 1; Ga. L. 1997, p. 879, § 1; Ga. L. 2001, p. 487, § 5; Ga. L. 2016, p. 186, § 6/HB 941.)

Cross references.

- Malpractice, partiality, and conduct unbecoming of office, § 45-11-4.

Editor's notes.

- Ga. L. 2001, p. 487, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Corruption Prevention Act.'"

Ga. L. 2001, p. 487, § 6, not codified by the General Assembly, provides: "The provisions of Section 5 of this Act shall apply only to crimes committed on or after the effective date of this Act." The effective date of this Act is April 20, 2001.

Law reviews.

- For article, "Georgia Local Government Officials and the Grand Jury," see 26 Ga. St. B.J. 50 (1989). For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005); 58 Mercer L. Rev. 267 (2006). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 79 (2016).

JUDICIAL DECISIONS

Intent.

- This section is intended to afford to police officers the same procedural protection afforded to other public officials as to accusations arising from the performance or nonperformance of their official duties. Mize v. State, 152 Ga. App. 190, 262 S.E.2d 492 (1979).

Purpose

- O.C.G.A. § 45-11-4 furthers the legitimate state interest of protecting certain government officials, vested with the authority to exercise discretion, against possible frivolous indictments pursued by persons aggrieved by the exercise of that discretion because the legislative rationale is that if these officials do not have such protection, the officials' reputation and performance of the officials' duties could be compromised while the officials are defending baseless charges; by enacting O.C.G.A. § 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 the officials' official duties, and thus, the legitimate purpose of O.C.G.A. § 17-7-52, in conjunction with § 45-11-4, is to protect peace officers from harassing or frivolous charges before the grand jury. State v. Smith, 286 Ga. 409, 688 S.E.2d 348 (2010).

Similar provisions.

- Former Code 1933, §§ 89-9907 through 89-9910 (see O.C.G.A. §§ 45-11-4 and45-15-11), which were similar to Ga. L. 1975, p. 607, § 1 (see O.C.G.A. § 17-7-52), but involve public officials, were narrowly drawn and relate only to misconduct in public office. Mize v. State, 152 Ga. App. 190, 262 S.E.2d 492 (1979).

Defendant no longer a police officer.

- Protections afforded by O.C.G.A. § 17-7-52 did not apply to one who was no longer a police officer when a prosecution against the officer was commenced. Dudley v. State, 242 Ga. App. 53, 527 S.E.2d 912 (2000).

Presence before grand jury.

- When a police officer raped a woman in the officer's custody, the officer was properly denied the protection of being permitted to be present and to make a sworn statement when the case was presented to the grand jury since the performance of official duties does not include rape. Gober v. State, 203 Ga. App. 5, 416 S.E.2d 292, cert. denied, 203 Ga. App. 906, 416 S.E.2d 292 (1992).

When the defendant quashed the defendant's indictment due to the state's failure to allow defendant to appear before the grand jury as was the defendant's right as a police officer under O.C.G.A. §§ 17-7-52 and45-11-4, the state did not appeal as was the state's right under O.C.G.A. § 5-7-1(a)(1), the state instead obtained an accusation against the defendant, and the trial court quashed the accusation due to the state's failure to allow the defendant to appear before the grand jury, the state could not argue, in opposing the defendant's motion to quash the accusation, that the defendant was not performing the defendant's official duties at the time of the alleged criminal conduct; because the trial court had previously decided this issue against the defendant, res judicata under O.C.G.A. § 9-12-40 barred further litigation of the issue. State v. Allen, 262 Ga. App. 724, 586 S.E.2d 378 (2003).

Trial court did not err in finding that the defendant, who was an officer with a college police department, was not entitled to be present and make a statement pursuant to O.C.G.A. §§ 17-7-52(a) and45-11-4 when the defendant's case was presented to the grand jury because the indictment did not allege that the crimes occurred while the defendant was performing the defendant's duties; the defendant was not on campus as defined by O.C.G.A. § 20-8-1(1), and the record did not show that the defendant's official duties as a campus police officer included the commission of the acts at issue, while the defendant was off duty and engaged in leisure activities outside of the defendant's jurisdiction. Worthy v. State, 307 Ga. App. 297, 704 S.E.2d 808 (2010).

Law enforcement officer defendant's motion to dismiss an indictment charging the defendant with felony murder on the ground that unauthorized persons were present in the grand jury room during the prosecutor's presentation of evidence was properly denied because Georgia's statutory secrecy requirements were not violated. Olsen v. State, 302 Ga. 288, 806 S.E.2d 556 (2017).

Although a deputy charged with sexual battery and false imprisonment was a certified peace officer and the offenses occurred during the deputy's working hours, the deputy had stepped aside from the deputy's official duties when the deputy allegedly restrained women against their will, groped their breasts and buttocks, and exposed the deputy's genitalia; therefore, the deputy was not entitled to the rights to be present and make a sworn statement to the grand jury provided in O.C.G.A. §§ 17-7-52 and45-11-4. State v. Dorsey, 342 Ga. App. 188, 802 S.E.2d 61 (2017).

Performance of official duties does not include the commission of burglaries. Mize v. State, 152 Ga. App. 190, 262 S.E.2d 492 (1979); Morrill v. State, 216 Ga. App. 468, 454 S.E.2d 796 (1995).

Police officer may be charged with a misdemeanor by accusation in state court. Sanderson v. State, 217 Ga. App. 51, 456 S.E.2d 667 (1995).

Police officer failed to show any violation of statutory rights.

- Trial court properly denied the defendant's demurrer and motion to quash based upon the state's alleged violation of the defendant's rights under O.C.G.A. § 45-11-4(g) and (h), with regard to the procedure to be followed when charging a public officer with a crime, as the defendant failed to show that the state violated any of the defendant's rights under the statute. Brandeburg v. State, 292 Ga. App. 191, 663 S.E.2d 844 (2008), cert. denied, No. S08C1796, 2008 Ga. LEXIS 921 (Ga. 2008).

Lack of proper notice to police officer.

- With regard to a defendant's conviction on three counts of false statements and writings, the trial court erred by denying the defendant's motion for a new trial as a result of erring by denying the defendant's plea in abatement and motion to dismiss the indictment as the state violated the notice provisions under O.C.G.A. §§ 17-7-52 and45-11-4, with respect to peace officers and public officials, by failing to notify the defendant when the proposed indictment would be presented to the grand jury. The defendant, a police officer and police chief of two municipalities, was accused of falsifying time records and, as a police officer, was entitled to the notice set forth under the statutes. Smith v. State, 297 Ga. App. 300, 676 S.E.2d 750 (2009), aff'd, 286 Ga. 409, 688 S.E.2d 348 (2010).

Court of appeals did not err in finding that the state failed to notify the defendant when the proposed indictment would be presented and in directing that the defendant's convictions be set aside because notice of the specific time and place of the grand jury presentment was required to be provided to the defendant by the state; 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 O.C.G.A. §§ 17-7-52 and45-11-4 in regard to notification to the accused, and the task of providing the notice to the accused of the date, time, and place of the state's evidentiary showing logically and pragmatically must lie with the state. State v. Smith, 286 Ga. 409, 688 S.E.2d 348 (2010).

Defendant, a K-9 handler, was acting within the scope of the defendant's official duties when the defendant left the dog in the car with inadequate ventilation as the defendant was responsible for the dog's daily care including housing the dog at the defendant's residence and, thus, the defendant was entitled to the protections afforded by O.C.G.A. § 17-7-52, including notice of the grand jury proceeding and a copy of the proposed indictment before the state presented the case to the grand jury. State v. Peabody, 343 Ga. App. 362, 807 S.E.2d 107 (2017), cert. denied, 2018 Ga. LEXIS 428 (Ga. 2018).

Applicability of section.

- Protections of O.C.G.A. § 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 proceedings against that individual are commenced. Dudley v. State, 273 Ga. 466, 542 S.E.2d 99 (2001).

Defendant, a police officer, was charged with misdemeanor traffic violations of speeding and failing to reduce speed when approaching an intersection and was entitled to the statutory protections of O.C.G.A. §§ 17-7-52 and45-11-4 afforded to police officers charged with a crime. State v. Lockett, 259 Ga. App. 179, 576 S.E.2d 582 (2003).

Because the defendant's performance of official duties as a police officer did not include rape or any other sort of sexual assault, and the defendant was not performing official duties while allegedly committing the charged offenses, the defendant was not entitled to the protections afforded by O.C.G.A. §§ 17-7-52 and45-11-4. State v. Galloway, 270 Ga. App. 184, 606 S.E.2d 273 (2004).

Charge of false writings and statements, in violation of O.C.G.A. § 16-10-20, which arose during the performance of official duties by the defendant, a police officer, should have been dismissed because proper notice pursuant to O.C.G.A. §§ 17-7-52 and45-11-4 was not given to the defendant; other charges against the defendant were not subject to dismissal as those charges did not arise in the performance of official duties, and the lack of notice did not improperly influence or infect the other convictions. Wiggins v. State, 280 Ga. 268, 626 S.E.2d 118 (2006).

Trial court erred by holding that O.C.G.A. §§ 17-7-52(a) and45-11-4(g) did not apply as there was substantial evidence that the defendant entered the sheriff's office in furtherance of an investigation while the defendant was arguably on call on the night of the sheriff's death. Yancey v. State, 342 Ga. App. 294, 802 S.E.2d 702 (2017).

Application to corrections officer.

- Counts for battery and lying to an agent of the Department of Corrections did not fall within the scope of O.C.G.A. § 17-7-52 because nothing therein indicated that the acts alleged occurred with the defendant's performance of the job duties at the prison as a corrections officer. State v. O'Neal, 352 Ga. App. 228, 834 S.E.2d 317 (2019), cert. denied, No. S20C0418, 2020 Ga. LEXIS 325 (Ga. 2020).

Trial court did not err in granting the motion to quash the count alleging the defendant violated the defendant's oath as a public officer because the language accusing the defendant of abusing inmates while employed as a corrections officer sufficiently characterized the defendant's conduct as within the performance of the defendant's duties such that O.C.G.A. § 17-7-52 applied and the state failed to follow the notice requirements therein. State v. O'Neal, 352 Ga. App. 228, 834 S.E.2d 317 (2019), cert. denied, No. S20C0418, 2020 Ga. LEXIS 325 (Ga. 2020).

Cited in Creamer v. State, 150 Ga. App. 458, 258 S.E.2d 212 (1979); State v. Roulain, 159 Ga. App. 233, 283 S.E.2d 89 (1981); Knowles v. State, 159 Ga. App. 239, 283 S.E.2d 51 (1981); Quillan v. State, 160 Ga. App. 167, 286 S.E.2d 503 (1981); Sauls v. State, 220 Ga. App. 115, 468 S.E.2d 771 (1996).

RESEARCH REFERENCES

Am. Jur. 2d.

- 70 Am. Jur. 2d, Sheriffs, Police, and Constables, § 156 et seq.

C.J.S.

- 67 C.J.S., Officers, §§ 249, 250, 251.

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