State v. Dempsey
290 Ga. 763
Ga.2012Background
- Dempsey fatally shot Crane in 2009, claiming self-defense.
- First indictment 09-CR-325-MM for malice murder etc. was returned Nov 10, 2009, with Prescott as grand jury foreman.
- Dempsey moved to quash the first indictment; trial court denied but removed Prescott from grand jury service.
- Second indictment 10-CR-003-DB was returned Jan 5, 2010 after Prescott’s removal; nolle prosequi as to the first indictment was entered Jan 14, 2010; Dempsey moved to quash the second indictment and it was granted.
- Court held Prescott’s ineligibility as an elected official invalidated the first indictment; the second indictment was properly quashed because the grand jury proceedings were not legally constituted.
- Court affirmed the quash as to the first indictment and reversed as to the second, with mootness and reindictment issues discussed under OCGA provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the first indictment was valid. | Dempsey argues Prescott’s ineligibility tainted the grand jury. | State contends timing and procedural rules support the indictment. | First indictment should have been quashed. |
| Timeliness of pretrial motions under OCGA 17-7-110. | Dempsey filed before the statutory deadline; timely. | State cites post-2003 cases allowing some post-deadline motions. | Motion timely; statutory deadline applied. |
| Whether the second indictment was properly quashed for lack of a legally constituted grand jury. | Evans/Fields reasoning supports invalid proceedings without proper testimony. | Fields is distinguishable; the second proceeding relied on prior evidence. | Second indictment properly quashed. |
| Effect of nolle prosequi and potential reindictment under OCGA 17-7-53.1. | Nolle prosequi could affect rights and potential reindictment. | Reindictment possible unless both indictments are quashed; 53.1 applies. | Not moot; bar to future prosecution arises if both indictments are quashed. |
Key Cases Cited
- Betts v. State, 66 Ga. 508 (1881) (incompetent grand juror renders indictment void)
- Reich v. State, 53 Ga. 73 (1874) (grand juror not a citizen taints indictment)
- Crawford v. Crow, 114 Ga. 282 (1901) (incompetent grand juror invalidates the bill)
- Langlands v. State, 282 Ga. 103 (2007) (timeliness under OCGA 17-7-110; ten-day rule)
- Evans v. State, 17 Ga. App. 120 (1915) (invalid grand jury findings void; no valid testimony)
- Palmer v. State, 282 Ga. 466 (2007) (historical demurrer timing; pre-arraignment rules reformed)
- Fields v. State, 260 Ga. 331 (1990) (second indictment when same grand jury; applicable to proceedings)