Opinion
S07A1460
DECIDED: JANUARY 8, 2008
Richard Scott Harper was charged with the murder of Thad Reynolds and with related crimes, and the State gave notice of its intent to seek the death penalty. This Court granted interim review and directed the parties to address the following two questions: (1) whether the trial court erred in denying a challenge to the grand jury on the ground that someone other than the person intended to be summoned served on the grand jury; and (2) whether the trial court erred in denying a motion to suppress evidence seized during a search of Harper's desk at work.
1. a) The record shows that a grand jury summons was issued to "William A. Conner" at a certain address. The summons did not list a birth date. It was received by William A. Conner, Sr., who lived at the address on the summons, and he actually served on the grand jury. Both the grand jury list created by the
jury commission and the list of jurors appended to the trial court's order to summon jurors for this case listed only a "William A. Conner" with the birth date of April 12, 1977, which is the birth date of William A. Conner, Jr. Testimony in the trial court showed that William A. Conner, Jr., had moved away from the county at least ten years earlier, but maintained a "permanent address" in the county at his sister's house, which had a different address than that to which the jury summons was directed. The testimony was clear that William A. Conner, Jr., had never lived at the address appearing in the jury commission's records, the order to summon jurors, and the jury summons. The director of the jury management office testified that she believed the wrong person had served on the grand jury. However, it is not completely clear from the record whether she was right, as it is possible that the address listed on the jury summons and in the jury commission's records was correct and that the birth date in those records was incorrect. The trial court's order addressing this issue assumed for the purpose of its analysis that the wrong person served on the grand jury. The trial court also found that the juror who served was otherwise qualified to serve. See OCGA § 15-12-60.
Assuming that the wrong person actually served on the grand jury, a timely challenge would be valid. Turner v. State, 78 Ga. 174, 180 (2) (1886). The holding of Turner is consistent with Bazemore v. State, 28 Ga. App. 556 ( 112 SE 160) (1922), which held that reversal is required where a timely claim demonstrates that someone not on the grand jury list served on the grand jury. See also Estep v. State, 129 Ga. App. 909, 914 (5) ( 201 SE2d 809) (1973) (citing Bazemore andTurner).
The State argues that service on the grand jury of someone not on the grand jury list created by the jury commission is a violation of merely directory aspects of the Code. See State v. Parlor, 281 Ga. 820 ( 642 SE2d 54) (2007) (holding that the statutory instruction to conduct a biennial revision of the grand jury list is merely directory); Sealey v. State, 277 Ga. 617, 618-619 (2) ( 593 SE2d 335) (2004) (holding that the statutory instruction to select the most upright and intelligent citizens for the grand jury is merely directory). However, we have long held that "a disregard of the essential and substantial provisions of the [jury selection] statute will have the effect of vitiating the array." Pollard v. State, 148 Ga. 447, 453 ( 96 SE 997) (1918). See also Al-Amin v. State, 278 Ga. 74, 80 (7) ( 597 SE2d 332) (2004). In this case, unlike those cited by the
State, the defect was not in complying with the statutory directives governing how the jury commission should select grand jurors. Instead, the alleged defect was that someone never selected by the jury commission served. "The jury commissioners are, under our law, the judges of the qualifications of the citizens to be placed on the jury lists and in the jury boxes of the county." Pollard v. State, supra. Where this role of the jury commission has been entirely circumvented by the service of a grand juror it never selected for service, there has been an "essential and substantial" violation of the law. Pollard v. State, supra. This conclusion is supported by Turner, wherein this Court addressed the question of what defects in the composition of a grand jury concern merely directory aspects of the Code, and specifically stated that having the wrong person serve on the grand jury would be a sufficient reason to require a new indictment. Turner v. State, supra at 178-180 (1, 2).
The State argues that Harper's claim should fail because he has not taken the "substantive step" of showing that the grand juror in question was not qualified to serve. Dawson v. State, 166 Ga. App. 515, 517 (2) ( 304 SE2d 570) (1983). In Dawson, however, the "substantive step" was "the presentation of the alleged illegality with supporting facts, argument and citation of authority." Dawson v. State, supra. The grand juror in question in Dawson was shown to have been qualified for service on the grand jury because she had been selected for service in the previous term and her service had been deferred until the following term. See OCGA § 15-12-1 (a) (1) (authorizing deferral of jury service to the next term). In contrast, at least under the facts as assumed in the trial court's order, Harper has made a sufficient "presentation of . . . illegality" in the composition of the grand jury by showing that someone never selected for service by the jury commission served on the grand jury. Dawson v. State, supra.
b) Harper made an oral motion to quash the indictment on this ground, which the trial court denied. Although we find that, under the facts assumed in the trial court's order, that motion was sufficient in its merits, we nevertheless affirm the order because the motion was untimely.
The first mention in the record of a challenge to the grand jury on the basis that one of the grand jurors should not have served is in the transcript of the hearing held on August 23, 2006. This Court has held that, in a non-capital case, a challenge to the grand jury is deemed to be waived unless it is made before indictment or the defendant did not have any knowledge, either actual or
constructive, of the alleged illegality prior to the time the indictment was returned. Langlands v. State, 282 Ga. 103, 106-107 (3) ( 646 SE2d 253) (2007) (quoting Clark v. State, 255 Ga. 370, 372 (2) ( 338 SE2d 269) (1986)). See also Hayes v. State, 138 Ga. App. 666, 667 (2) ( 226 SE2d 819) (1976). However, the trial court properly noted that this Court has construed the Unified Appeal Procedure ("UAP") as authorizing challenges to the grand jury after indictment in death penalty cases. Walraven v. State, 250 Ga. 401, 405 (1) ( 297 SE2d 278) (1982) (citing UAP II (A) (5), which is now UAP II (C) (5)). Even though Harper's claim that a wrong person served on the grand jury was not untimely with respect to the indictment, it nevertheless was untimely with respect to the arraignment, which occurred on December 21, 2004. By statute, "[a]ll pretrial motions, including demurrers . . . shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court." OCGA § 17-7-110. See also Palmer v. State, 282 Ga. 466 ( 651 SE2d 86) (2007) (noting that the deadline was changed in 2003 by act of the General Assembly from arraignment to ten days after arraignment). Uniform Superior Court Rule 31.1 further requires that any such extension be made "in writing" by the trial court.
Demurrers themselves also must be "made in writing." OCGA § 17-7-111.
Compare Ross v. State, 235 Ga. App. 7, 8 ( 508 SE2d 424) (1998) ("`If, however, the indictment or accusation is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during the trial, and it may be quashed on oral motion.' [Cit.]"). Here, the time for filing the demurrer was never extended by the trial court in writing or otherwise. Both the trial court's order and a review of the record show that Harper did not ever file a written motion. This Court has held that Rule 31.1 "does not allow exceptions" and that failure to comply with it will result in the denial of relief on appeal even where, as here, the trial court did not invoke it below. Davis v. State, 272 Ga. 818, 819 (1) ( 537 SE2d 327) (2000) (citing both Rule 31.1 and OCGA § 17-7-111).
The trial court's order does not address whether the UAP as discussed in Walraven, supra, extends the time for filing demurrers in death penalty cases past the deadline imposed by OCGA § 17-7-110, which is ten days past the date of arraignment. However, such an extension would be improper for two reasons. First, the UAP and Walraven themselves do not reach that far. The relevant portion of the UAP appears under the heading "First Proceeding" and reads as follows:
The court shall determine whether the defendant intends to challenge the arrays of the grand or traverse juries. Challenges to the composition of the boxes from which the grand jury or traverse jury is drawn, and challenges to the manner in which the grand or traverse jury is drawn, shall be presented and heard at the earliest possible time consistent with the court's calendar and with the right of the defendant to seek a continuance. If a challenge is presented, the court shall hear the asserted factual and legal basis of challenge although under the law the right to challenge may have been waived.
UAP II (C) (5). We find that this portion of the UAP authorizes an extension of the time for filing a challenge to the grand jury only if the defendant announces his or her intention to do so at the UAP's "First Proceeding." This conclusion is consistent with Walraven v. State, supra at 405 (1): "Failure to announce at the first hearing that defendant does, in fact, intend to challenge the array of the grand jury might ordinarily bar a subsequent challenge." A second reason for not using the UAP to make an exception to the statutory requirement that challenges to the grand jury be filed within ten days following arraignment is found in the rationale of Edwards v. State, 281 Ga. 108 ( 636 SE2d 508) (2006). InEdwards, this Court held that it lacked the constitutional power to order the quashing of an indictment based upon the UAP's requirement of less than a five percent under-representation of cognizable groups on the grand jury
list, where nothing in constitutional or statutory law required that result. This Court reasoned that to interfere with the statutorily created function of indictments without any constitutional or statutory authorization was improper. In light of Edwards, even if this Court interpreted the UAP as authorizing demurrers beyond ten days after arraignment without the granting of an extension of time by the trial court, we would not apply the UAP in contravention of statutory law.
Because we find that the motion to quash the indictment was untimely with respect to the arraignment, we affirm the trial court's order denying that motion under the right for any reason principle.
2. Law enforcement officers seized items in a bag from Harper's desk at work pursuant to a warrant. The trial court denied the motion to suppress the items seized, finding that the warrant was valid. As the State now concedes, the warrant was invalid and the seized items must be suppressed.
The lead investigator, Dallas Battles, sought the search warrant based on a telephone call he received from a police officer, Rodney Bailey. Bailey informed Battles that he had received a telephone call from a third party who claimed to be a member of Bailey's church and who claimed to have attended
"a close-knit family meeting" in which Harper admitted his guilt. Bailey testified that the caller remained completely anonymous, but Bailey assumed that the unidentified informant was credible based on the fact that the informant had called "with a conscience." Battles prepared an affidavit with which to seek a search warrant. The affidavit referred to Bailey as a "concerned citizen." However, Battles testified that he gave oral testimony to the magistrate identifying Bailey as a police officer. The affidavit stated that the "concerned citizen" had "received information from a third party who is a family member of Scott Harper . . . that Scott Harper committed the murder of Thad Reynolds." The affidavit asserted that "the concerned citizen stated that the third party is a truthful person and has no reason to falsify the information and has nothing to gain by falsifying the information." Finally, the affidavit stated that the third party told the concerned citizen that "Harper admitted to family members that he committed the murder and has hidden the murder weapon and bloody clothing that he wore during the commission of the crime at Floyd Medical Center." The defect in the affidavit is that it presents the third party informant as being a family member, a truthful person, and someone without a motive to lie when the person who spoke to the informant had absolutely no way of
knowing to whom he was speaking. In this case, unlike other cases where an anonymous tipster's information has been corroborated, the information contained in the affidavit failed to provide any reason under the totality of the circumstances known to officers to believe that the information was from a credible source. See State v. Stephens, 252 Ga. 181, 183 ( 311 SE2d 823) (1984) (citing Illinois v. Gates, 462 U. S. 213 ( 103 SC 2317, 76 LE2d 527) (1983)); Davis v. State, 214 Ga. App. 36, 37-38 ( 447 SE2d 68) (1994) (holding that an anonymous informant should not be deemed to possess the inherent veracity of a "concerned citizen" absent evidence by which the magistrate can make such a conclusion). See also 2 LaFave, Search Seizure, § 3.3 (a), pp. 97-113 (4th ed. 2004). Accordingly, we conclude that the trial court erred by finding that probable cause was shown to the magistrate for the issuance of the search warrant.
The trial court made an alternative finding that no warrant was required for the search of Harper's desk at work, because it was unlocked and was in a workspace shared by numerous coworkers. The trial court cited Mancusi v. DeForte, 392 U. S. 364 ( 88 SC 2120, 20 LE2d 1154) (1968), but it failed to recognize that that case controls this issue favorably to Harper. In DeForte,
officials conducted a warrantless search of an office owned by a union. The Court held that the defendant had standing to insist that evidence seized during the search be suppressed despite the fact that the union held title to the office and despite the fact that he shared the office with several other union officials. Contrary to the trial court's reasoning here, the Supreme Court stated as follows:
It seems to us that the situation was not fundamentally changed because DeForte shared an office with other union officers. DeForte still could reasonably have expected that only those persons and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups.Mancusi v. DeForte, supra at 369 (II). Because there was no evidence that any of Harper's coworkers or supervisors gave valid consent to the search of his desk, we conclude, in light of DeForte, that a warrant was required for its search. The trial court's conclusion regarding Harper's desk is also contrary to O'Connor v. Ortega, 480 U. S. 709 ( 107 SC 1492, 94 LE2d 714) (1987). In Ortega, a plurality of the Court suggested that some office desks, filing cabinets, and similar items may be so open to the public or be subject to such general use that no one person has any reasonable expectation of privacy in them. However, the Court concluded that the desk and file cabinet in question were used
exclusively by the defendant, that he regularly kept personal items in them, and that the defendant's employer did not have any regulation or policy discouraging employees from storing personal items in their desks and file cabinets. Furthermore, a review of the concurring and dissenting opinions in Ortega reveals that the plurality opinion represented the most restrictive view of the defendant's privacy interest and that a majority of the Court believed that the defendant plainly had a reasonable expectation of privacy, not only in his desk and file cabinet, but also in the whole of his office. See O'Connor v. Ortega, supra at 729-732 (Scalia, J., concurring in the judgment), 732-748 (II) (Blackmun, J., dissenting). In light of the foregoing and our review of the evidence in the record, we conclude that the search of Harper's desk at work invaded a reasonable expectation of privacy and, therefore, that the warrant requirement applied.
The trial court refers to the items in question, which were in a bag in Harper's desk at work, as having been in "plain sight within the area to be searched." However, this rationale offers no support for the seizure of the items, because they came into plain view only by way of the unlawful search of the desk and bag.
Because a warrant was required for the search of Harper's desk at work, because the warrant authorizing the search was issued without a showing of probable cause, because no exception to the warrant requirement has been shown, and because Georgia does not have a good faith exception to the search warrant requirement, the fruits of the search of the desk must be suppressed. See Gary v. State, 262 Ga. 573 ( 422 SE2d 426) (1992) (applying OCGA § 17-5-30 (b) to hold that there is no good faith exception to the warrant requirement in Georgia).
3. Harper contends that a search of his laptop computer at work was unlawful. We exercise our discretion to decline to address this issue, which was not set forth in our order granting interim review. See OCGA § 17-10-35.1 (h) ("[T]he failure of the Supreme Court to grant review . . . shall not waive the right to posttrial review.").
Judgment affirmed in part and reversed in part. All the Justices concur.