The State of Georgia appeals from the trial court’s partial grant of Ronald Charles Delaby’s special demurrer to an indictment charging him with two counts of influencing a witness pursuant to OCGA § 16-10-93.
This case arises out of the separate criminal prosecution of David Daniel for child molestation. Delaby was employed as a private investigator to assist in Daniel’s defense, and in March 2006, he conducted a recorded interview with the victim, D. K. 1 Daniel’s defense team provided the prosecution a tape and transcript of that interview through discovery procedures, and Delaby was subsequently arrested based upon that recording. A Forsyth County grand jury indicted Delaby on April 18, 2008, and he filed his special demurrer on May 7, 2008.
“By [filing a] special demurrer[,] an accused claims, not that the charge in an indictment ... is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information.” (Footnote omitted.)
State v. Jones,
Because we are reviewing [an] indictment before any trial, we do not conduct a harmless error analysis to determine if he has actually been prejudiced by the alleged deficiencies in the indictment; rather, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance.
(Footnote omitted.)
Blackmon v. State,
The applicable statute in this case provides:
It shall be unlawful for any person knowingly to use intimidation, physical force, or threats; to persuade another person by means of corruption or to attempt to do so; or to engage in misleading conduct toward another person with intent to . . . [influence, delay, or prevent the testimony of any person in an official proceeding.
(Emphasis supplied.) OCGA § 16-10-93 (b) (1) (A). The trial court granted the demurrer as to Count 1 of the indictment,
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which alleged that on March 31, 2006, Delaby “did knowingly use intimidation with the intent to influence the testimony of [D. K.], in an official proceeding. ...” The trial court acknowledged that Count 1 tracked the language of the statute and that an indictment tracking statutory language is generally deemed sufficient. See
State v. Austin,
The State argues that the trial court erred in granting the demurrer as to Count 1 because the word “intimidation” has been defined by Georgia courts in the context of robbery by intimidation.
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But the definition of “intimidation” in that context does not resolve
the issue of whether the language of Delaby’s indictment was sufficient to apprise him of what he must defend at his trial for influencing a witness. Moreover, the cases upholding indictments for robbery by force or intimidation cited by the State are inapposite.
An indictment must sufficiently apprise the defendant of what he must be prepared to meet. “The defendant is entitled to know the particular facts constituting the alleged offense to enable him to prepare for trial.” (Citations omitted.)
State v. Black,
Appellants . . . were charged only with causing unjustifiable physical pain, suffering, or death by “neglect,” without specifying the manner in which they were negligent. Since their negligence could have taken many forms, such as failure to provide adequate food and water, physical abuse, failure to treat a disease, etc., the failure to charge the manner in which the crime was committed subjected the accusations to a special demurrer.
Id. at 658 (1) (a). See also
State v. Jones,
Similarly in this case, the intimidation of a witness could come in a number of ways, none of which is alleged in the indictment. Therefore, we agree with the trial court that the use of the statutory language in Count 1 of the indictment was generic and did not adequately inform Delaby of the facts constituting the offense alleged against him. Because Delaby filed a timely special demurrer, he was entitled to an indictment that was perfect in form and substance. Count 1 of Delaby’s indictment failed to meet that standard, and we affirm the trial court’s grant of the special demurrer to that count. 6
Judgment affirmed.
Notes
The facts in the Daniel case, including a description of Delaby’s recorded interview with D. K., are more fully set forth in this Court’s opinion in
Daniel v. State,
See generally
State v. Eubanks,
The trial court, however, overruled the demurrer as to Count 2 of the indictment, which alleged that on March 31, 2006, Delaby “did communicate a threat of injury to the person of [D. K.], a witness, with the intent to deter the witness from testifying freely, fully, and truthfully. . . .”
The Supreme Court of Georgia has defined “intimidation” in the robbery context to mean “that terror . . . likely to create an apprehension of danger, and induce a person to part with his property for the safety of his person” and “that act by the perpetrator that puts the person robbed in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking.” (Citation and punctuation omitted.)
Hewitt v. State,
Reversed on other grounds,
State v. Military Circle Pet Center No. 94,
“When an error in an indictment is pointed out on special demurrer, the trial court does not have power to amend the grand jury’s indictment in any material fashion.”
State v. Eubanks,