Wе granted Dwight Brown’s application for interlocutory review of the trial court’s order denying his motion to quash a second indictment issued against him on the same charges asserted in an earlier indictment. Brown asserts that a pending appeal of the earlier indictment deprived the trial court of jurisdiction to consider the second indictment. He also contests the trial court’s denial of his “Motion to Abate and/or Dismiss for State’s Deliberate and Improper Use of Disqualified Grand Jurors to Obtain Indictment” and his “General and Special Demurrer to Counts 32 Through 35 of the Indictment.” For the reasons set forth below, we affirm the trial court’s denial of Brown’s motions to quash the indictment and for abatement, but we reverse the trial court’s denial of his demurrers as to Counts 32 through 35.
Brown, the former president and CEO of Cobb Electric Membership Corporation (“Cobb EMC”), was first indicted on January 6,2011 (thе “First Indictment”). The trial court quashed the First Indictment on March 24, 2011, because it found that it was not returned in open court as required by Georgia law, and the State appealed (the “First Appeal”). This Court affirmed the trial court’s order on March 29, 2012, in State v. Brown,
On July 7, 2011, while the First Appeal was still before this Court, the State obtained a new indictment against Brown (the “Second Indictment”). The appellate record in this case does not contain a copy of the First Indictment; however, according to the trial court, the Second Indictment “contains the same charges as in the First Indictment, but in addition identifies by name many victims age sixty-five or older.” These charges include allegations of theft by taking, filing false statements and writing, conspiracy to defraud Cobb County, conspiracy to defraud the Cobb County School District,
1. Brown moved to quash the Second Indictment, asserting that the рendency of the prior appeal deprived the trial court of jurisdiction to return an indictment charging the same or similar offenses.
The trial court found “no Georgia case in which Defendant’s novel jurisdictional defense has been raised and addressed,” so the Court relied upon persuasive authority from another state in denying the order. See Irvin v. State,
In that сase, Roberts was indicted on June 29,2001 on charges of child molestation and aggravated child molestation. Roberts v. State,
Roberts appealed thе denial of his motion for acquittal, but the State apparently did not appeal the order quashing the indictment. Both this Court and the Supreme Court subsequently affirmed the trial court’s denial of the motion for acquittal. Roberts I, supra. However, due to the time required for resolving the matter in both appellate courts, the remittitur was not returned to the trial court until December 2, 2004. Roberts II,
“Meanwhile, in November 2002, after Roberts filed his notice of apрeal [and two years before the remittitur was returned], a grand jury indicted [him] a second time for the same offenses.” Roberts II,
In considering Roberts’ second appeal, this Court found:
Filing a notice of appeal divests the trial court of jurisdiсtion in some matters, but not in all. In a criminal case, the filing of a notice of appeal merely deprives the trial court of its power to execute the sentence. Generally a trial court may not alter a judgment or order while an appeal of that particular judgment or order is pending before the appellate court, nor may a trial court initiate proceedings that require a ruling on the еxact matter being appealed.
(Citation and punctuation omitted; emphasis supplied.) Roberts II,
As the Roberts opinion noted, for example, in Strickland,
[a] trial court also retains jurisdiction to rule on a motion for withdrawal and substitution of defense counsel, Elrod v. State,222 Ga. App. 704 , 705 (1) (475 SE2d 710 ) (1996); to appoint appellate counsel, Spear v. State,271 Ga. App. 845 , n. 1 (610 SE2d 642 ) (2005); to dismiss an appeal and to assist in preparing the record, State v. James,211 Ga. App. 149 , 150 (2) (438 SE2d 399 ) (1993); and to consider the State’s*449 petition to nolle prosequi a second indictment after the defendant filed a notice of appeal from the court’s former jeopardy ruling on the second indictment. State v. Lejeune,276 Ga. 179 , 184-185 (4) (576 SE2d 888 ) (2003); Waters v. State, [174 Ga. App. 438 , 439 (1) (330 SE2d 177 ) (1985)].
Id. Based upon that authority and “considering the peculiar facts and circumstances of [Roberts],” this Court concluded that “the trial court did not err in finding that ‘the State had the ability to bring the [second] indictment against [Roberts].’ ” Id. at 437-438.
The real issue, therefore, is whether the return of the Second Indictment required the trial court to issue a ruling on the exact matter being considered in the First Appeal, or whether it directly or indirectly affected such matters. We conclude that it did not. The First Appeal concerns the issue of whether the First Indictment was read in open court as required under Georgia law. The Second Indictment initiated a completely separate prosecution on the same charges,
The cases Brown cites in support of his argument are factually and procedurally distinguishable as none of them involve two indictments, i.e., two separate proceedings, addressing the same charges in the same court. The cases of Scroggins v. State,
And the case of Griffin v. State,
In Griffin, therefore, not only were the two indictments filed in different courts, the trial court in the first county had not quashed its indictment; rather, it remained in effect at the time the second indictment was issued in the second county. The Supreme Court ruled that the second county did not have jurisdiction until the first court released its jurisdiction by quashing the first indictment. Moreover, Griffin involved a claim of double jeopardy, and the United States Supreme Cоurt has found that
the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence [because the defendant would be] . . . forced to endure a trial that the Double Jeopardy Clause was designed to prohibit____[I]f a criminal defendant is to avoid exposure to double j eopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.
(Citations and emphasis omitted.) Abney v. United States,
Accordingly, we find under Georgia law that the triаl court properly denied Brown’s motion to quash.
2. Brown next asserts that the trial court erred in denying his motion in abatement on the ground that the grand jury that issued the Second Indictment contained individuals who were victims of the crimes alleged by the State. The charges against Brown are based on allegations that he
engaged and participated in a pattern of racketeering activity that included, but was not limited to, the theft of milliоns of dollars from Cobb EMC, the theft of millions of dollars in patronage capital from Cobb EMC’s members (including Cobb County and the Cobb County School District), and false statements to conceal these thefts from Cobb EMC’s members.
Thus, Brown argues that any Cobb EMC member is victim under the State’s theory of prosecution and accordingly should be disqualified from considering an indictment against him. And on May 27, 2011, prior to the return of the Second Indictment, Brown filed a “Motion to Challenge the Grand Jury Poll, to Disqualify Grand Jurors and Special Demurrer” asserting that five members of the grand jury were members, customers or patrons of Cobb EMC (“the May 27 motion”). No ruling was issued on the May 27 motion, and Brown reasserted this argument as to four of the grand jurors who voted on his indictment in his motion for abatement filed on August 26, 2011, after the Second Indictment was returned.
But under OCGA § 15-12-137.1, with regard to petit jurors,
[a] member of an electric membership corporation shall not be incompetent, based solely on such membership, to serve as a juror in a case in which the electric membership corporation is a party or is interested; provided, however, that if the judge in such case finds that the nature of the case or that the circumstances surrounding a potential juror’s membership in an electric membership corporation may cause a potential juror to have a bias or prеjudice for or against the electric membership corporation in that case, the judge may grant a party’s motion to disqualify such member for cause.
But even if membership in the Cobb EMC could be found sufficient to disqualify a grand juror, that disqualification would not be sufficient to support Brown’s motion for abatement. Our courts distinguish between challenges to the qualification of a grand juror that “render the juror disqualified to serve as such in any case,” i.e., disqualification “propter defectum,” and challenges “that disqualify him only in the case involved,” i.e., disqualification “propter affectum.” (Citations omitted.) Farrar v. State,
We agree with the trial court that Brown’s challenge to the grand jurors in this case clearly alleges a disqualification propter affectum, and thus the trial court properly denied Brown’s motion in abatement. See Clackum v. State,
Brown asserts that these cases are distinguishable, however, because he filed the May 27 motion prior to the indictmеnt to alert the district attorney that the grand jury pool contained Cobb EMC
3. Brown further argues that the trial court erred in denying his general and special demurrer to Counts 32 to 35 of the indictment. He asserts that the alleged filing of a civil lawsuit against persons cooperating with the prosecution in a criminal case cannot constitute an offense pursuant to OCGA § 16-10-32 or OCGA § 16-10-93.
Brown filed both special and general demurrers to the indictment, and each kind of demurrer presents distinct challenges to an indictment.
A general demurrer challenges the sufficiency of the substance of an indictment. The true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.
(Citations and punctuation omitted.) Gavin v. State,
is not whether it could have been made more definite and certain, but whether it contains the elements of the offense*454 intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are tаken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
State v. English,
Here, Count 32 of the Second Indictment charges Brown with the offense of influеncing witnesses under OCGA § 16-10-93 (a) in that he communicated to potential witnesses a threat of damage to their property with the intent to deter the witnesses from testifying freely, fully and truthfully, by conspiring with the directors of the Cobb EMC to file a lawsuit against persons who allegedly cooperated with the prosecution with regard to his criminal case. Count 33 cites the same conduct to allege a violation under OCGA § 16-10-93 (b) (1) (A), with the intent to influence, delay or prevent the witnesses’ testimony in an official proceeding. Count 34 cites the same conduct to support a charge under OCGA § 16-10-32 (b) (4) that Brown with the intent to hinder, delay, prevent or dissuade the witnesses from assisting in a criminal prosecution directly or indirectly threatened, caused, or attempted to cause them economic harm. And Count 35 cites the same conduct in support of a charge under OCGA § 16-10-32 (b) (1) that Brown, with the same intеnt and threat, sought to prevent them from testifying in an official proceeding.
But this Court has determined that “threatening to (ostensibly) exercise one’s legitimate right to file a lawsuit is [not] encompassed by [OCGA § 16-10-93 (a)]” because such a threat is “neither a per se threat to a person nor to property.” (Citations omitted.) DeLong v. State,
In denying the demurrers, the trial court relied, in part, upon language in a footnote in DeLong “[leaving] for another day the question of whether the explicit threat of filing a clearly frivolous lawsuit possibly falls within the ambit of the statute.”
Accordingly, the trial court erred in denying Brown’s demurrers to Counts 32 to 35 of the Second Indictment.
Judgment affirmed in part and reversed in part.
Notes
Under OCGA § 5-6-45 (a), the filing of a notice of appeal in criminal cases “shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to hail.” Here, Brown was “admitted to bail,” and bond was posted.
The trial court’s failure to find Georgia law on point is understandable given the parties’ somewhat inexplicable failure to cite the Roberts case, either below or on appeal, despite its clear application in this case and despite the fact that it expressly distinguishes one of the three principal cases upon which Brown relies.
Aprosecutionbegins with the return of an indictment. OCGA § 16-1-3 (14). See generally Waters,
Accordingly, we find no material distinction between the Roberts case and the case before us. Although in Roberts, the State did not appeal the order quashing the first indictment, and it did appeal that ruling in this case, we do not find this factor to be determinative. Roberts’ appeal sought a ruling that the State was prevented from pursuing the charges against him based upon a speedy trial violation, which, if successful, would have ended the case. Here, the First Appeal seeks to reinstate the First Indictment, which, if successful, merely would result in two indictments for the same crimes, making one of the indictments superfluous. In that event, the State could seek an order of nolle prosequi for the “extra” indictment as such an order “may he entered without the consent of the accused at any time prior to the attachment of jeopardy. OCGA § 17-8-3; [Cit.].” Sanders v. State,
Overruled on other grounds, Washington v. State,
As the trial court noted, however, the district attorney is not authorized to summarily exclude Cobb EMC members from the grand jury. See Echols v. State,
Although the trial court found that he had waived his argument regarding the allegedly disqualified grand jurors by failing to obtain a ruling on the May 27 motion, our Supreme Court recently confirmed that challenges to the composition of a grand jury are timely if filed within ten days after arraignment, unless the time for filing is extended by the court, in accordance with OCGA § 17-7-110. Here, the motion in abatement was filed before Brown waived arraignment; thus it was timely. State v. Dempsey,
We express no opinion, however, on whether filing a lawsuit, accompanied by some other threat, communication or conduct, could fall within the ambit of these statutes.