This is а case in which the state is seeking the death penalty. We granted Kenneth Hardwick’s application for interlocutory appeal to review the trial court’s rulings regarding Hardwick’s motion for change of venue.
In November 1992, Hardwick filed a motion for change of venue alleging that due to extensive pre-trial publicity an impartial jury could not be obtained in Gwinnett County to try his casе. The parties discussed with the trial court several other venues, including Bibb and Chatham counties. Pursuant to OCGA § 17-7-150 (a), the district attorney and Hardwick’s lawyer announced to the court that they had agreed tо try the case in Chatham County. However, following this announcement, the state conducted a cost analysis of holding trial in Chatham County. The state thereafter filed a motion to “preserve
The trial court found that after the financial and logistical problems associated with conducting the trial in Chatham County became apparent, “the State consented only to the selection of jurors in Savannah, Georgia and assertеd that pursuant to Uniform Superior Court Rule 19.2 (B), the jurors selected be transported to Gwinnett County for actual presentation of the case.” The trial court noted that further attempts by the statе and defense to agree on a trial venue other than Chatham County were unsuccessful. The trial court then evaluated the hardships of conducting trial in Chatham County, and “[a]fter weighing all the faсtors involved .. . decline[d] to accept” the original agreement of the parties to hold trial in Chatham County in favor of “a less distant and problematic venue.”
We granted Hardwick’s application for interlocutory review to determine 1) whether, if the parties have agreed to change of venue to Chatham County, OCGA § 17-7-150 (a) requires the trial court to transfer the cаse to that venue; and 2) whether USCR 19.2 (B) conflicts with OCGA § 17-7-150 (a). We conclude that OCGA § 17-7-150 (a) does not preclude the trial court from exercising its discretion to reject the parties’ agreement regarding vеnue and to order venue in another county. We further conclude that because USCR 19.2 (B) conflicts with OCGA § 17-7-150 (a), a trial court may not return ju
1. OCGA § 17-7-150 (a) provides in pertinent part that if the trial court decides that venue should be changed, “the judge shall transfer [the case] to any county that may be agreed upon by the prosecuting attornеy and the defendant or his counsel, to be tried in the county agreed upon.” While this statute was enacted in 1895, the appellate courts of this state have not addressed the issue of whether thе trial court is required to transfer the case to any county selected by the parties. Initially we must decide whether the language providing that the trial court “shall” transfer the case to any cоunty agreed on by the parties, is mandatory or directory.
The general rule is that “shall” is recognized as a command, and is mandatory. See State of Ga. v. Henderson,
To give effect to the intention of the legislature, сourts are not controlled by the literal meaning of the statute, but the spirit or intention of the law prevails over the letter thereof. [Cits.] Where the letter of the statute results in absurdity or injustice or would lead to contradictions, the meaning of general language may be restrained by the spirit or reason of the statute .... It is the duty of the court to consider the results and consequences оf any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature. [Cits.]
Barton v. Atkinson,
The legislature intended, by enacting OCGA § 17-7-150, to establish a procedure for securing a venue where an impartial jury can be obtained when “an impartial jury cannot be obtained in the county where the crime is allegеd to have been committed.”
After reviewing the record, we conclude thе trial court did not abuse its discretion in rejecting the agreement of the parties to move the case to Chatham County, and in ordering that venue be changed to Bibb County.
2. As stated above, the trial court granted a change of venue to Bibb County, but “reserve [d] its option pursuant to [Uniform] Rule 19.2 (B) to return the jurors selected to Gwinnett County for trial.” That rule provides:
When there has been an order granting change of venue to the superior court of a county other than that in which the action theretofore pended, the trial jury shall be selected from qualified jurors of the transfereе county although the trial of the action may, in the discretion of the presiding judge, take place in the transferor county.
We conclude this rule is unenforceable, absent consent of thе parties, because it is inconsistent with OCGA § 17-7-150 (a).
“Venue” is defined as “the place of trial.” Williams v. Fuller,
In summary, we affirm the trial court’s decision to change venue to Bibb County. However, we reverse the trial court’s order insofar as it reserves an option under USCR 19.2 (B) to try the case in Gwinnett County. Assuming the jury is selected from Bibb County, the case will be tried there.
Judgment affirmed in part and reversed in part.
Notes
According to the state’s cost analysis, a two-week trial in Chatham County, exсluding jury selection, would cost between $60,000 and $70,000 above the cost of trial in Gwinnett County. The state also pointed out that holding trial in Chatham County would create a hardship for the witnesses in the casе, most of whom are Gwinnett County residents.
This court denied Hardwick’s application for interlocutory review based on the trial court’s first order on the ground that the order failed to dispose entirely of the motion for change of venue. Subsequently, the trial court entered the order that is the basis for this appeal.
In designating this site the trial court noted that Bibb County is outside the media focus of this сase; that it is much closer to Gwinnett County than is Chatham County, thus reducing financial, safety and travel burdens in transporting court staff and over 40 witnesses to the trial site; and that Bibb County is willing to accommodate Gwinnett County in conducting the trial there.
We note that the trial court’s determination of whether an impartial jury may be obtained in a given county to try the case is entitled to great deference. Isaacs v. State,
Of course, the defendant may waive any potential defense оf improper venue, OCGA § 9-11-12 (h) (1) (B). See Holcomb v. Ellis,
The Preamble provides that “[i]t is not the intention, nor shall it be the effect, of these [Uniform Superior Court] rules to conflict with the Constitution or substantive law, either per sе or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.”
We do not comment on the wisdom of USCR 19.2 (B). However, the General Assembly would have to enact legislation in order to allow the procedure provided by that rule. See Art. VI, Sec. II, Par. VIII of the 1983 Ga. Const.; see also OCGA § 17-2-2; Schiefelbein v. State,