Brown v. State
322 Ga. App. 446
Ga. Ct. App.2013Background
- Brown sought interlocutory review of a trial court order denying motion to quash a second indictment issued for the same charges as an earlier indictment.
- The First Indictment (Jan 6, 2011) was quashed for not being returned in open court; State appealed and appellate proceedings followed.
- The Second Indictment (July 7, 2011) charged the same offenses and added victims aged 65 or older, plus four new Counts 32–35 about civil lawsuits against cooperación with prosecutors.
- Brown challenged the Second Indictment as improper due to the pending appeal of the First Indictment and moved for abatement/quashal of the Second Indictment.
- The trial court denied Brown’s motions to quash and for abatement but denied his demurrers to Counts 32–35; the issue whether grand jurors were disqualified was raised but not ruled on pre-indictment.
- The appellate court affirmed denial of the quash/abatement but reversed as to Counts 32–35 demurrers, concluding those counts fail to state offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pending appeal on the First Indictment deprives trial court of jurisdiction to return Second Indictment | Brown asserts pendency of the First Indictment appeal divests jurisdiction. | State contends trial court had jurisdiction to issue the Second Indictment separate from the First. | Trial court properly denied quash and abatement; separate prosecutions allowed. |
| Whether grand jury disqualification claims support abatement | Brown argues Cobb EMC member status taints grand jury; seeks abatement. | State asserts grand jurors’ membership does not per se disqualify; disqualification propter affectum not a basis for abatement here. | Abatement denied; disqualification propter affectum insufficient to dismiss charges. |
| Whether Counts 32–35 (RICO/obstruction-type charges) are cognizable under the statute | Brown demurs that threats via filing civil suits do not constitute the charged offenses. | State contends the counts allege prohibited conduct under OCGA § 16-10-93 and § 16-10-32. | Counts 32–35 were barred; the court erred in denying demurrers and these counts should be dismissed. |
| Whether the Second Indictment can stand when the First Indictment remains pending on appeal | Brown argues duplicative indictments create improper proceedings due to pending appellate issues. | State argues second proceeding is distinct and permissible. | No reversal; the Second Indictment may proceed notwithstanding the First Indictment's appellate status. |
Key Cases Cited
- Roberts v. State, 279 Ga. App. 434, 631 S.E.2d 480 (2006) (notice of appeal does not deprive court of all jurisdiction; may still rule on matters not directly on appeal)
- Strickland v. State, 258 Ga. 764, 373 S.E.2d 736 (1988) (appeal does not prevent court from acting on matters not impugned by appeal)
- Waters v. State, 174 Ga. App. 439, 330 S.E.2d 177 (1985) (distinguishes proceedings initiated by first vs. second indictment)
- State v. Lejeune, 276 Ga. 179, 576 S.E.2d 888 (2003) (consideration of post-indictment actions after filing of second indictment)
- DeLong v. State, 310 Ga. App. 518, 714 S.E.2d 98 (2011) (threat concept under OCGA 16-10-93; distinguishes frivolous filings from protected rights)