Opinion
A09A0612
DECIDED: FEBRUARY 25, 2009
On appeal from the grant of new trial to Jasper Johnson on charges for attempting to enter an automobile (OCGA §§ 16-4-1 and 16-8-18), the State argues that the trial court erred when it held the indictment fatally defective and counsel's performance ineffective. We affirm.
OCGA § 5-5-50 provides: "The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." (Emphasis added.) As we first pointed out in this context in State v. McMillon, 283 Ga. App. 671 ( 642 SE2d 343) (2007):
In this state the trial judge is vested with the strongest of discretions to review the case and to set the verdict aside if he is not satisfied with it. Indeed the trial judge oftentimes is spoken of as being the thirteenth juror. Until his approval is given the verdict is not binding. This is nothing more than the recognition of a rule of law of this state that the first grant of a new trial to either party is not to be reversed by an appellate court unless the verdict set aside by the trial court was absolutely demanded.
(Emphasis added; footnote omitted.) Id. at 671-672 (applying OCGA § 5-5-50 to grant of a new criminal trial for the first time); compare State v. O'Neal, 292 Ga. App. 884 ( 665 SE2d 926) (2008) (reversing grant of a new trial as an abuse of discretion), cert. granted, Case No. S08G2011, Nov. 3, 2008.
So viewed, the record shows that two Athens-Clarke County police officers were sitting in an unmarked 1995 Toyota truck across the street from Johnson at 5:30 a.m. when they saw him reach into the bushes, retrieve something, approach a 2000 Honda, cup his hands against the car's window, and peer inside. Johnson then stepped back and threw a rock at the car window twice. When the window failed to break, Johnson looked toward the Toyota truck, approached it, and opened the driver's door. One of the officers yelled, "Clarke County Police," and Johnson fled. When the officers caught up with him, Johnson raised his fists as if he were boxing. After he was handcuffed, Johnson told police that he was only trying to get some change. Evidence showed that the Honda was registered to a man from Texas.
Johnson was charged with four counts in association with two nighttime break-ins: entering the Toyota with the intent of committing theft (Count 1), attempting to enter the Honda (Count 2), obstruction (Count 3), and loitering and prowling (Count 4). At trial, Johnson was represented by a public defender appearing in his first felony trial in superior court. In the course of voir dire, Johnson exercised six peremptory strikes, although the trial court had said that he was entitled to nine. After the jury was empanelled, Johnson demurred to Count 2 of the indictment on the ground that it omitted any allegation of his intention to commit a theft or a felony. See OCGA § 16-8-18 ("[i]f any person shall enter any automobile . . . with the intent to commit a theft or a felony, he shall be guilty of a felony"). After argument, the trial court denied the motion, but noted that Johnson could renew it after the close of evidence.
At the hearing on Johnson's motion for new trial, trial counsel testified that he had mistakenly thought that Johnson had only six strikes rather than nine and that he would have stricken juror 12 because her car had been broken into and because she appeared hostile and uncooperative. The trial court found that trial counsel had performed deficiently, resulting in a jury panel "different from that which would have decided the case" had he used all nine strikes to which he was entitled under OCGA § 15-12-165, and granted Johnson a new trial. The trial court also sustained Johnson's demurrer to Count 2.
1. The Supreme Court of Georgia has held that "[w]hen a defendant in a felony trial has to exhaust his peremptory strikes to excuse a juror who should have been excused for cause[,] the error is harmful." Bradham v. State, 243 Ga. 638, 639-640 ( 256 SE2d 331) (1979); see also Fortson v. State, 277 Ga. 164, 166 (2) ( 587 SE2d 39) (2003) (wasting a strike on a juror who has already been struck amounts to deficient performance, and actual prejudice is presumed). Here, the evidence showed that as a result of counsel's misunderstanding of the number of strikes available to Johnson, at least one juror identified as hostile to him was empanelled. The trial court did not err when, on the basis of this evidence, it granted Johnson a new trial as a result of ineffective assistance of counsel. See Fortson, 277 Ga. at 166-167 (2) (reversing denial of motion for new trial); McMillon, 283 Ga. App. at 672-673 (1) (affirming grant of new trial where there was evidence to support finding that trial counsel's deficient performance had prejudiced the defendant).
2. Because the matter is likely to recur on remand, we also consider whether Count 2 of the indictment was fatally defective. That count charged Johnson with
attempt to commit the crime of Entering an Automobile, OCGA § 16-8-18[,] in that the said accused did knowingly and intentionally perform an act which constituted a substantial step toward the commission of said crime by throwing a rock at the front driver side window of a 2000 Honda Accord[,] in violation of OCGA § 16-4-1.
On appeal, the State argues that the inclusion of OCGA § 16-8-18 in the indictment is sufficient to cure the omission of the requisite intent under that statute. We disagree.
The test on general demurrer for determining whether an accusation or indictment is sufficient is not whether it could have been made more definite and certain or, for that matter, perfect, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Thus, if the accused can admit all the indictment or accusation or citation charges and still be innocent of having committed any offense, the indictment or accusation or citation is defective.
(Citation and punctuation omitted; emphasis in original.) Spence v. State, 263 Ga. App. 25, 27 (2) ( 587 SE2d 183) (2003).
Here, the State has failed to allege whether Johnson intended to commit a theft or a felony when he threw the rock at the Honda, and Johnson could admit to the charges in the indictment and still lack the requisite intent for an attempt at entering an automobile (as opposed to criminal damage to property, for example (see OCGA § 16-7-23)). We therefore affirm the sustaining of Johnson's demurrer to Count 2. See D'Auria v. State, 270 Ga. 499, 500-501 (1) ( 512 SE2d 266) (1999) (sustaining general demurrer to an indictment for its failure to specify which of defendant doctor's contacts with his patient gave rise to a charge of criminal battery); Spence, 263 Ga. App. at 28 (2) (quashing indictment which failed to specify that driver was attempting to elude police when he failed to stop); see also State v. Black, 149 Ga. App. 389, 391 (4) ( 254 SE2d 506) (1979). Any new indictment should include an allegation of Johnson's intent to commit a theft or other crime when he attempted to enter the 2000 Honda.
Judgment affirmed with direction. Miller, C. J., and Barnes, J., concur.