Sanders v. StateSanders v. State
In this granted interlocutory appeal, Kelly Sanders challenges the denial of her special demurrer as to the six-count second indictment against her, arguing that it is insufficient in a number of ways. After Sanders filed her notice of appeal from the denial of her special demurrer, the State indicted Sanders a third time, and the trial court entered orders of nolle prosequi as to the first and second indictments. The State argues that because Sanders was indicted a third time and the trial court purported to dismiss the second indictment that is the subject of this appeal, Sanders’ appeal is moot. We disagree that Sanders’ appeal is moot. Rather, the purported order of nolle prosequi with respect to the second indictment was a nullity. We further conclude that Counts 2, 4, and 5 of the second
Procedural History
1. The victim in this case, Eugene Singletary, was shot and killed on January 22, 2018. On April 18, 2018, a Gwinnett County grand jury indicted Sanders for felony murder predicated on conspiracy to commit possession of methamphetamine, conspiracy to commit possession of methamphetamine, conspiracy to commit aggravated assault, criminal solicitation, and trafficking
On February 26, 2020, a Gwinnett County grand jury re-indicted Sanders for two counts of felony murder predicated on conspiracy to commit aggravated assault and conspiracy to commit armed robbery (Counts 1 and 2, respectively); conspiracy to commit aggravated assault (Count 3); conspiracy to commit armed robbery (Count 4); criminal solicitation (Count 5); and trafficking methamphetamine or amphetamine (Count 6) (the “Second Indictment“). On January 12, 2021, Sanders filed a special demurrer to the Second Indictment,4 which the trial court summarily denied
On May 26, 2021, a Gwinnett County grand jury re-indicted Sanders for felony murder, conspiracy to commit aggravated assault, criminal solicitation, and trafficking methamphetamine or amphetamine. On June 9, 2021, the State moved the trial court to enter an order of nolle prosequi as to the First Indictment, and the trial court did so that day. On June 21, 2021, the State moved the trial court to enter an order of nolle prosequi as to the Second
2. As a preliminary matter, the State argues that Sanders’ appeal is now moot because the trial court entered an order of nolle prosequi as to the Second Indictment after Sanders filed her notice of appeal. We disagree.
A notice of appeal generally divests the trial court of jurisdiction to alter the judgment or order that is being appealed. See Ricks v. State, 303 Ga. 567, 568 (814 SE2d 318) (2018) (noting that where a notice of appeal remains pending, the appeal acts as supersedeas so that the trial court lacks jurisdiction to consider a motion challenging the same judgment on appeal, and the trial court‘s ruling is a nullity necessitating vacating the trial court order); Peterson v. State, 274 Ga. 165, 171 (6) (549 SE2d 387) (2001) (“A notice of appeal divests the trial court of jurisdiction to alter a judgment while appeal of that judgment is pending.“); see also Styles v. State, 245 Ga. App. 90, 92 (537 SE2d 377) (2000) (Blackburn, P.J., concurring specially) (explaining that the “loss of jurisdiction” resulting from an appeal in a criminal case applies to all
The scope of the supersedeas effect upon filing a notice of appeal is governed by different statutes. Under
In contrast,
The cases cited by the State in its argument on this question
For these reasons, Sanders’ appeal from the denial of her special demurrer as to the Second Indictment is not moot.
3. Turning to the merits of her appeal, Sanders argues that each of the counts against her in the Second Indictment is insufficient and that her special demurrer should have been granted. We agree with respect to Counts 2, 4, and 5. However, we hold that Counts 1, 3, and 6 are not subject to a special demurrer on the grounds argued by Sanders.
“A defendant is entitled to be tried on a perfect indictment and may file a special demurrer seeking greater specificity or additional information concerning the charges contained in the indictment.” Jones v. State, 289 Ga. 111, 115 (2) (c) (709 SE2d 773) (2011). With
is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
(Punctuation and citation omitted.) State v. Wyatt, 295 Ga. 257, 260 (2) (759 SE2d 500) (2014); see also State v. Grube, 293 Ga. 257, 258 (2) (744 SE2d 1) (2013). “It is useful to remember that the purpose of the indictment is to allow [the] defendant to prepare his defense intelligently and to protect him from double jeopardy.” Jones, 289 Ga. at 116 (2) (c); see also Dunn v. State, 263 Ga. 343, 344 (2) (434 SE2d 60) (1993) (“Due process is satisfied where the indictment puts the defendant on notice of the crimes with which he is charged and against which he must defend.“). “We review a ruling on a special demurrer de novo to determine the legal sufficiency of the allegations in the indictment.” Hinkson v. State, 310 Ga. 388, 392 (3) (850 SE2d 41) (2020).
(a) Count 1 charges Sanders with felony murder predicated on conspiracy to commit aggravated assault, and reads as follows:
[O]n the 22nd day of January, 2018, while in the commission of the offense of Conspiracy to Commit Aggravated Assault, a felony, [Sanders] did cause the death of Eugene Singletary, a human being, by gunshot, contrary to the laws of said State, the good order, peace and dignity thereof.
Sanders argues that Count 1 is flawed because it fails to sufficiently allege: (i) the proximate cause element of felony murder; (ii) a conspiracy because it does not identify the co-conspirator or an overt act in furtherance of the conspiracy; (iii) facts about the aggravated assault; and (iv) an inherently dangerous or life-threatening underlying felony. Sanders’ arguments lack merit.
(i) Sanders argues that Count 1 fails to allege proximate cause in sufficient detail and that she should have been given more information about the causal link between the alleged conspiracy and Singletary‘s death. We disagree.
(ii) Sanders also argues that Count 1 is flawed because it fails to sufficiently allege a conspiracy. More specifically, Sanders argues that Count 1 fails to identify a co-conspirator or an overt act in furtherance of the conspiracy. However, because the alleged deficiencies are addressed in the allegations of the conspiracy count of the indictment, we disagree that the alleged errors required a special demurrer to be granted.
“Although each count must be wholly complete within itself and contain every allegation essential to constitute the crime, this rule applies only to the offense rather than the form[,]” and “the indictment is read as a whole.” State v. Jones, 274 Ga. 287, 288-289 (1) (553 SE2d 612) (2001); see also Hester, 283 Ga. at 368 (2) (the rule applies to “essential elements of the crime, and not to the form of the indictment or to factual details alleged therein“). Sanders’ claim that Count 1 must be vacated because it did not allege the essential elements of the underlying offense of conspiracy to commit
Count 3 charges Sanders with conspiracy to commit aggravated assault, and it alleges that Sanders “did unlawfully conspire with Eugene Singletary” to commit an aggravated assault against Conley. Thus, assuming without deciding that Sanders is correct in arguing that a co-conspirator had to be identified for the indictment to be constitutionally sufficient, Count 3 provides this information.
Count 3 further alleges “the overt acts of planning to assault said Chaz Conley and texting him to lure him to a certain location under false pretenses[.]” Sanders argues that “planning to assault” Conley does not qualify as an overt act. Assuming, arguendo, that Sanders is correct in this assertion, the allegation that Sanders
(iii) Sanders further argues that Count 1 is subject to a special demurrer because it fails to allege facts about the aggravated assault she allegedly conspired to commit. Specifically, Sanders argues that she cannot tell from the indictment whom she allegedly planned to assault or how she planned to do so. Sanders’ argument lacks merit.
“[A]n indictment does not have to contain every detail of the crime to withstand a special demurrer,” but rather must allege the
Further, the indictment is detailed enough for Sanders to prepare her defense to the charge of felony murder predicated on conspiracy to commit aggravated assault without additional information regarding precisely how she planned to commit the aggravated assault. Because Sanders had notice that the charge of felony murder predicated on conspiracy to commit aggravated assault involved the use of a firearm, Sanders was sufficiently informed that she would need to defend against all the possible ways in which she could have planned to commit an aggravated assault
(iv) Lastly, Sanders argues that Count 1 is subject to a special demurrer because it fails to sufficiently allege an inherently dangerous or life-threatening underlying felony. Sanders argues that because the count fails to specify any aggravating factors, the alleged conspiracy is actually one to commit a simple assault, which is not an inherently dangerous felony. Sanders’ argument lacks merit.
The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human
life. For a felony to be considered inherently dangerous, it must be dangerous per se or it must by its circumstances create a foreseeable risk of death. In determining whether a felony meets that definition, this Court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed.
Funck v. State, 296 Ga. 371, 373-374 (1) (768 SE2d 468) (2015). Aggravated assault has been recognized by this Court as an inherently dangerous felony. See, e.g., Smith v. State, 290 Ga. 768, 771 (2) (723 SE2d 915) (2012) (describing aggravated assault as an “inherently dangerous felony” that can support a felony murder conviction). It stands to reason, then, that a conspiracy to commit an inherently dangerous felony, such as aggravated assault, would also be inherently dangerous.
Sanders argues that the count must allege the element that aggravates the crime above a simple assault. We agree that this is true where a defendant is charged with aggravated assault. See Wyatt, 295 Ga. at 261 (2) (a) (an indictment for aggravated assault must allege the “element that aggravates the crime above a simple assault“). But as recounted in paragraph 4 (a) above, Count 1
(b) Sanders next argues that her special demurrer as to Count 2 of the Second Indictment should have been granted because it fails to allege the elements of, or sufficient facts about, the conspiracy or armed robbery and fails to sufficiently allege a causal connection between the conspiracy and Singletary‘s death. Count 2, which charges Sanders with felony murder predicated on conspiracy to commit armed robbery, reads as follows:
[O]n the 22nd day of January, 2018, while in the commission of the offense of Conspiracy to Commit Armed Robbery, a felony, [Sanders] did cause the death of Eugene Singletary, a human being, by gunshot, contrary to the laws of said State, the good order, peace and dignity thereof.
The State concedes that Count 2 fails to sufficiently allege armed robbery and contends that it does not intend to proceed with this charge.
We agree that Count 2 fails to allege the elements of the predicate felony of conspiracy to commit armed robbery because in neither that count nor any count in the Second Indictment has the
In order to satisfy due process when an indictment charges a compound felony such as felony murder, the count charging the compound offense must contain the essential elements of the predicate offense, or the indictment must contain a separate count charging the predicate offense completely, or the indictment must elsewhere allege facts showing how the compound offense was committed.
Stinson v. State, 279 Ga. 177, 178 (2) (611 SE2d 52) (2005); see also Mikenney v. State, 277 Ga. 64, 65 (1) (586 SE2d 328) (2003) (“[A]n indictment which omits an essential element of the predicate offense in a count charging a compound offense can nonetheless satisfy the requirements of due process as long as the indictment charges the predicate offense completely in a separate count.” (citations and punctuation omitted)); Dunn v. State, 263 Ga. 343, 344 (2) (434 SE2d 60) (1993) (same). The same holds true here. The defendant must
The essential elements of conspiracy that must be alleged in an indictment are set forth in
(c) Sanders argues that Count 3, which charges Sanders with conspiracy to commit aggravated assault, should be dismissed because it fails to allege a conspiracy or an aggravating factor. However, Sanders’ arguments fail for the reasons outlined in Division 3 (a) (ii)-(iv) above. Accordingly, Count 3 is not subject to a special demurrer on these grounds.
(d) Sanders also argues that her special demurrer as to Count 4 should have been granted because it is a duplicative charge. Count 4 is captioned “conspiracy to commit armed robbery,” but the substance of this Count actually is the same as Count 3, which alleges a conspiracy to commit aggravated assault.6 The State
The substance, not the caption, of the indictment controls. See State v. Eubanks, 239 Ga. 483, 484 (238 SE2d 58) (1977), superseded in part on other grounds as noted in Palmer v. State, 282 Ga. 466, 467 (651 SE2d 86) (2007); Jackson v. State, 316 Ga. App. 588, 592 (2) (730 SE2d 69) (2012). Because Count 4 is “entirely duplicative” of another count and provides “no additional facts by which it [could] be distinguished from that count,” a grant of special demurrer is warranted here. State v. Meeks, 309 Ga. App. 855, 859 (2) (711 SE2d 403) (2011); see also Williams v. State, 307 Ga. 778, 783 (2) n.8 (838 SE2d 235) (2020). The trial court erred in denying Sanders’ special demurrer as to Count 4, and its judgment is therefore reversed as to this count.
(e) Sanders next argues that her special demurrer as to Count 5 should have been granted because it fails to allege any facts
Count 5 reads:
[O]n the 22nd day of January, 2018, with intent that another person engage in conduct constituting a felony, [Sanders] did request Chaz David Conley to commit the felony offense of Violation of the Georgia Controlled Substances Act: Possession of a Controlled Substance, contrary to the laws of said State, the good order, peace and dignity thereof.
“A person commits the offense of criminal solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.”
While an indictment “does not have to contain every detail of the crime to withstand a special demurrer,” it must “state the essential elements of the offense charged” and “must allege the underlying facts with enough detail to sufficiently apprise the
(f) Lastly, Sanders argues that the trial court should have granted her special demurrer as to Count 6 because the title of the count is confusing, the count does not specify whether she is being charged with a felony or misdemeanor, the count alleges an incorrect date, and the count contains a grammatical error. We disagree that the alleged errors warrant special demurrer as to this count.
Sanders complains that the title of Count 6, “Trafficking Methamphetamine or Amphetamine,” is confusing because the body of the count charges her only with possessing methamphetamine. While the title of this count could cause confusion, the substance of the indictment controls, not the caption. See Eubanks, 239 Ga. at 484; Jackson, 316 Ga. App. at 592. And the substance of Count 6 clearly identifies methamphetamine as the controlled substance in question. Sanders also complains that Count 6 fails to state whether
Finally, Sanders complains that Count 6 alleges an incorrect date and contains a grammatical error. But “[w]hen a special demurrer points out an immaterial defect, the trial court need not dismiss the defective charge, but may strike out or correct the erroneous portion of the indictment.” Green v. State, 292 Ga. 451, 452 (2013); see also Reed v. State, 294 Ga. 877, 879-880 (2014) (where date is not alleged to be an essential element of the offense charged and accused has not raised an alibi defense, “any variance between the date listed in the indictment and the date on which the crime is proven to have occurred is of no consequence“). The trial court did not err in denying Sanders’ special demurrer as to Count 6, and its judgment on that count is affirmed.
Judgment affirmed in part and reversed in part. All the Justices concur, except LaGrua, J., not participating.
Notes
Count 4 alleged that Sanders committed conspiracy to commit armed robbery by “conspir[ing] with Eugene Singletary to commit the offense of Aggravated Assault against Chaz Conley, and in furtherance of said conspiracy, the overt acts of planning to assault said Chaz Conley and texting him to lure him to a certain location under false pretenses were done to effect the object of the conspiracy[.]”