LOVELESS v. STATE OF GEORGIA
A16A0479
Court of Appeals of Georgia
May 27, 2016
786 SE2d 899
MERCIER, Judge.
Judgment affirmed in part and reversed in part. Miller, P. J., and McFadden, J., concur. Weener & Nathan, Philip H. Weener, Devin B. Phillips, Zain N. Kapadia, for appellant. Owen, Gleaton, Egan, Jones & Sweeney, M. B. Satcher III, for appellee.
In February 2015, the State of Georgia filed pursuant to
Loveless filed an answer and amended answer to the complaint (collectively, “Answer“), claiming ownership of one of the amounts of cash ($12,231) and demanding its immediate return; denying allegations that the cash was found in close proximity to the drugs and that the cash had been used for, was intended to be used for, or constituted proceeds from illegal drug activity; contending that the officers had obtained the property in violation of his Fourth Amendment rights; and, stating that he was facing drug charges in a related criminal matter, asserting
The State filed motions to strike Loveless‘s Answer and for default judgment, asserting that the Answer did not comply with
1. Loveless contends that the trial court erred by striking his Answer, because “the answer involved disputed facts and substantial questions of law dealing with alleged unconstitutional seizure and specific assertion of statutory privilege.” This contention is without merit.
The trial court‘s ruling on a motion to strike is reviewed for abuse of discretion. However, we conduct a de novo review of the trial court‘s application of the law to undisputed facts, owe no deference whatsoever to the trial court‘s conclusions of law, and are free to apply anew the legal principles to the facts.
Crimley v. State of Ga., 330 Ga. App. 639, 641 (768 SE2d 813) (2015) (citation and punctuation omitted).
“In a civil in rem forfeiture action, a claimant‘s answer must be in strict compliance with the special pleading requirements of
Under
We find unconvincing Loveless‘s argument that the privilege set out in the Fifth Amendment and in
there is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings. The privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination as to the validity of the claim. . . . The questions must at the very least be considered on an individual basis and answered accordingly.
Tennesco, Inc. v. Berger, 144 Ga. App. 45, 48 (240 SE2d 586) (1977) (citations and punctuation omitted). Loveless did not consider each question on an individual basis and specifically claim privilege on each question. Instead, he “elect[ed] his rights . . . against self-incrimination as well as . . . to be free from being compelled to give evidence for or against himself,” adding that
answering the statutory requirement of
OCGA § 16-13-49 (o) may provide the State a colorable claim of association with others who may have been involved in activities unknown to respondent . . . which . . . may provide the State a claim of association with what the state has now charged as criminal activity.
Notably, there is considerable authority that in a civil forfeiture action, the court may as a matter of law draw inferences from a property claimant‘s invocation of the right against self-incrimination, and such inferences may constitute admissions unfavorable to him. Land v. State of Ga., 265 Ga. App. 859 (595 SE2d 540) (2004); Sanders, supra at 425-426 (2) (regarding Fifth Amendment); Simpson v. Simpson, 233 Ga. 17, 19-20 (209 SE2d 611) (1974) (permitting unfavorable inference to be drawn in civil cases from a privileged refusal to testify, where witness claims privilege embodied in Georgia statutes — such as former Ga. Code § 38-1205, which provided that no party shall be required to testify as to certain matters; the court‘s analysis was not limited to cases in which a party asserts a privilege not to answer questions that have a direct tendency to incriminate him, but also included cases in which a party asserts a privilege from “answering any question which may form a link in the chain“).
The burden is on the individual claiming the privilege “to state the general reason for his refusal to answer and to specifically establish that a real danger of incrimination existed with respect to each question.” Jett, supra at 656 (2), citing Petty v. Chrysler Credit Corp., 169 Ga. App. 418 (312 SE2d 874) (1984) (citations and punctuation omitted). Loveless did not meet that burden. The trial court may strike an answer when it fails to comply with the requirements of
Further, Loveless was not compelled to give evidence for or against himself in order to answer the forfeiture petition, inasmuch as he could have requested a stay of the forfeiture proceeding while the criminal case was pending, but did not do so. See
Loveless also complains that the trial court erred by striking his Answer when he had raised therein a sufficient defense, namely that the search and seizure occurred in violation of the Fourth Amendment. However, the Answer did not include those factual disclosures that the statute required. See Arreola-Soto, supra. In the absence of a legally sufficient answer, the trial court was without authority to consider the suppression issue. See Jones, supra at 770 (4); Tuggle v. State of Ga., 224 Ga. App. 353, 355-356 (3) (480 SE2d 353) (1997).
The Answer filed was insufficient, and the court did not err by striking it. See Jones, supra; Edwards v. State of Ga., 290 Ga. App. 467 (659 SE2d 852) (2008); Howard v. State of Ga., 223 Ga. App. 323, 325 (477 SE2d 605) (1996) (failure to comply with the strict pleading requirements of
2. Loveless contends that the trial court erred by not granting his motion to
Judgment affirmed. Ellington, P. J., and Branch, J., concur.