The State of Georgia indicted Terrell Wilson in Houston County, charging him as follows: Count 1 ■— aggravated assault of a peace officer, OCGA § 16-5-21 (c); Count 2 — interference with child custody, OCGA § 16-5-45 (b) (1) (A); Count 3 — fleeing or attempting to elude a police officer, OCGA § 40-6-395 (a); and Count 4 — driving with a suspended or revoked license, OCGA § 40-5-121 (a). At trial, Wilson made an oral motion to quash Counts 1 through 3 of the indictment, and the trial court granted the motion.
The record shows that the State indicted Wilson in September 2010, and he was arraigned in February 2011. In Count 1 of the indictment, the State charged Wilson with “Aggravated Assault on [a] Peace Officer,” alleging that he “did unlawfully make an assault upon the person of Dep. Richard Slate Simons, a peace officer engaged in the performance of his official duties, with a motor vehicle, an object, which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” (Emphasis supplied.) In Count 2, the State charged Wilson with “interference with custody,” alleging that he, “without lawful authority, did entice [S. J.], a child, from [N. J.], who has lawful custody of said child[.]” And, in Count 3, the State charged Wilson with “fleeing or attempting to elude” and alleged that he “did unlawfully and willfully fail to bring his vehicle to a stop after a pursuing police officer, Deputy Richard Slate Simons, gave a visual and audible signal, to wit: identifying himself as a police officer, holding up his hand and ordering the defendant to stop his vehicle[.]”
Wilson did not file a demurrer or a motion to quash the indictment before his December 2011 trial. Immediately after the jury was impaneled and sworn, however, Wilson’s counsel made an oral motion to quash Counts 1 through 3 of the indictment, asserting that each count failed to allege at least one essential element of the crime charged therein.
1. On appeal, the State contends that the trial court erred in finding that Wilson timely filed his motion to quash the indictment, arguing that the alleged defects in the indictment were not fatal to its validity and, therefore, Wilson was required to file a written special demurrer raising the challenge before trial. We review this alleged error de novo.
Due process of law requires that an indictment put the defendant on notice of the crimes with which he is charged and against which he must defend. An indictment apprises a defendant that he may be convicted of the crime named in the indictment, of a crime included as a matter of law in the crime named, and of a crime established by the facts alleged in the indictment regarding how the crime named was committed.
(Citation and punctuation omitted.) Stinson v. State,
embraces all lesser included offenses of the charged offense. An indictment places an accused on notice that he can be convicted of the crimes expressly charged as well as lesser crimes that are included in the charged offenses as a matter of law or fact. Indeed, if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense even if the trial court directs a verdict on the offense expressly charged in the indictment.
(Citations omitted.) Morris v. State,
If a defendant decides to challenge the validity, specificity or form of an indictment, he or she must file a general and/or special demurrer seeking to quash the indictment. A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime.
Thus, “[t]he 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 [of any crime]? If he can, the indictment is fatally defective.” (Citation and punctuation omitted.) State v. Meeks,
In contrast to a general demurrer, a special demurrer merely objects to the form of an indictment and seeks more information or greater specificity about the offense charged. Stinson v. State,
(a) With these principles in mind, we turn to the record in the instant case, which shows that, after the jury was impaneled and sworn, Wilson’s counsel made an oral motion to quash Counts 1 through 3 of the indictment, asserting that each count failed to allege at least one essential element of the crime charged therein. However, “[a]n allegation that an indictment was deficient because it did not contain all the essential elements of the crime is, in essence, a special demurrer seeking greater specificity.” (Citation omitted; emphasis supplied.) McDaniel v. State,
(b) Further, a challenge to an indictment that is based upon an alleged variance between the offense named in the indictment and the facts alleged in the indictment goes only to the form of the indictment, so that such challenge must be brought by special demurrer. Jones v. State,
Thus, to the extent that Wilson contended that the indictment was void because there was some variance between the facts alleged in each count and the offense actually named in that count, he waived such a challenge by failing to timely file a written special demurrer. Jones v. State,
(c) Having concluded that the trial court was not authorized to quash the indictment based solely upon problems with the form of the indictment, we now must address whether the substance of the indictment was legally sufficient to withstand Wilson’s oral general demurrer. Because, as noted above, an indictment charges the defendant with any crime that is established by the facts as alleged, including lesser included crimes, it follows that the trial court was authorized to grant Wilson’s general demurrer only if the allegations of the indictment were insufficient to charge him with any crime, thereby making the indictment fatally deficient and void. See Stinson v. State,
(i) Count 1 of the indictment alleged that Wilson “unlawfully [made] an assault upon the person of Dep. Richard Slate Simons, a peace officer engaged in the performance of his official duties, with a motor vehicle, an object, which, when used offensively against a person, is likely to or actually does result in serious bodily injuryf.]” (Emphasis supplied.)
Under OCGA § 16-5-21 (a) (2), “[a] person commits the offense of aggravated assault when he or she assaults[
Consequently, pretermitting whether this count sufficiently charged Wilson with assaulting someone he knows is a peace officer, pursuant to OCGA § 16-5-21 (c), he still cannot
(ii) In Count 2, the indictment alleged that Wilson, “without lawful authority, did entice [S. J.], a child, from [N. J.], who has lawful custody of said child, contrary to the laws of said State [.]” Although the indictment did not allege that Wilson “knowingly or recklessly... entice[d]” the child, pursuant to OCGA § 16-5-45 (b) (1) (A), “[t]he failure to allege intent is not fatal where the indictment employs language that necessarily raises an inference that the requisite criminal intent existed.” (Citations and punctuation omitted.) Morris v. State,
(iii) Finally, in Count 3, the indictment charged Wilson with “fleeing or attempting to elude,” alleging that Wilson “unlawfully and willfully fail[ed] to bring his vehicle to a stop after a pursuing police officer, Deputy Richard Slate Simons, gave a visual and audible signal, to wit: identifying himself as a police officer, holding up his hand and ordering the defendant to stop his vehicle [.]” Pretermitting whether the allegation that Deputy Simons “identified] himself as a police officer” was sufficient to allege that he was in uniform, wearing an official badge, and using a marked police vehicle, as required by OCGA § 40-6-395 (a),
Under OCGA § 16-10-24 (a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” We find, therefore, that the facts alleged in Count 3 were sufficient to charge Wilson with the lesser included offense of obstruction of a police officer. Gibson v. State,
2. Because we conclude that the trial court erred in quashing the indictment, the State’s remaining alleged errors are moot.
3. Finally, although it was neither illegal nor unethical for defense counsel to intentionally wait until the jury was impaneled and sworn before moving to quash the indictment, an act that was done with the express hope that jeopardy would attach and that the State would he unable to re-indict his client, we find that it is disrespectful to the trial court, the State, the jurors, and the witnesses and is wasteful of the time and extremely limited resources of the State’s justice system. See Armstrong v. State,
On the other hand, it is well within the power of the State and its prosecutors to avoid obvious oversights in indictments, such as those that are at issue in this case. Although most indictments are drafted so that they are clearly sufficient to withstand either a general or special demurrer, mistakes such as those presented here occur with inexplicable frequency and result in a tremendous waste of judicial and law enforcement resources that could and should be directed elsewhere. Although the minimal legal requirements for the form of indictments are provided, in very general terms, in OCGA § 17-7-54 (a),
Judgment reversed.
Notes
Before the court issued its written ruling on the motion to quash, it granted the State’s request to enter a nolle prosequi as to Count 4 of the indictment. See OCGA § 17-8-3.
See OCGA § 5-7-1 (a) (1) (the State may appeal from an order setting aside or dismissing an indictment).
In so moving, one of Wilson’s attorneys apologized to the Court for “the timing” of the motion, admitting that, if he had made the motion to quash before the jury was sworn, “it would have given the State the opportunity to [nolle] pros and reindict [Wilson] to make their indictment stronger[.]” According to Wilson’s attorneys, they waited to make the motion because of their duty to Wilson “to bring... to a permanent end, the prosecution of [the State’s] case by any legal or ethical means.” See Hayward-El v. State,
Under OCGA § 16-5-21 (c), “[a] person who knowingly commits the offense of aggravated assault upon a peace officer while the peace officer is engaged in, or on account of the performance of, his or her official duties shall, upon conviction thereof, be punished by imprisonment for not less than five nor more than 20 years.” (Emphasis supplied.) This statute has been construed to require that, at the time of the assault, the defendant “must have knowledge that he was assaulting a police officer engaged in the performance of his official duties.” (Citations omitted.) Johnson v. State,
Under OCGA § 16-5-45 (b) (1) (A), “[a] person commits the offense of interference with custody when without lawful authority to do so, the person ... [kjnowingly or recklessly takes or entices any child or committed person away from the individual who has lawful custody of such child or committed person[.]” (Emphasis supplied.)
Under OCGA § 40-6-395 (a),
[i]t shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.
(Emphasis supplied.)
This Court applies a de novo standard of review to a trial court’s determination of whether the allegations in an indictment were legally sufficient. Doe v. State,
See Gibson v. State,
In Morris, the indictment alleged that the defendant “ ‘cause [d] the death of [the victim] ... by striking [the victim] with his fist... contrary to the laws of said State, the good order, peace and dignity thereof.’ ” Morris v. State,
Because a person cannot be lawfully convicted on an invalid indictment, a general demurrer may be raised orally or in writing at any time before judgment is entered on his or her conviction. Stinson v. State,
Further, “[i]n line with the fact that a general demurrer attacks the legality of an indictment, it is permissible to raise this ground after verdict by a motion in arrest of judgment^] even if there was no earlier objection.” (Citation and punctuation omitted.) McDaniel v. State,
See Stinson v. State,
In Stinson, the Supreme Court of Georgia concluded that the defendant’s claim that the felony murder indictment was deficient because it did not contain all of the essential elements of the underlying crime of aggravated assault was, in essence, a special demurrer seeking greater specificity with regard to the predicate felony. Stinson v. State,
We note that, in each of the cases relied upon by the trial court and Wilson wherein the indictment was found to be void (and, therefore, subject to a general demurrer), a complete reading of each case shows that the reason the indictment was found to be void was not because it simply failed to charge an essential element of the crime; instead, it was because, as a result of that omission, the indictment failed to charge any crime at all. In other words, because of the absence of an essential element of the crime, the defendant could admit to all of the other allegations of the indictment and still not be guilty of committing any crime. See, e.g., Henderson v. Hames,
Further, to the extent Wilson relies on State v. Eubanks,
See, e.g., Doe v. State,
See OCGA § 16-5-20 (a) (“Aperson commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”).
See also Lambert v. State,
As explained in subsections (a) and (b), supra, if Wilson was uncertain about whether he could be convicted under Count 1 for the lesser included crime of aggravated assault with an offensive object, he should have filed a written special demurrer seeking more information or greater specificity. Lowe v. State,
See also Lowe v. State,
Black’s Law Dictionary, www.thelawdictionary.org (2nd ed.).
We note that Wilson has admitted in his appellate brief that Count 3 provided sufficient notice of the charge against him.
Even though the indictment in Gibson did not specifically allege that the defendant acted “knowingly,” pursuant to the obstruction statute, we found “no material distinction between ‘willfully’ disobeying [a police officer’s] order and disobeying it ‘knowingly and willfully,’ ” at least under the facts of the case. (Emphasis in original.) Gibson v. State,
We emphasize that, because Wilson failed to challenge the form or specificity of the indictment by special demurrer, he is not entitled to an indictment that is perfect in form. Thus, the State is authorized to prosecute Wilson for the crimes that are named in the indictment, as well as the lesser included offenses of those crimes.
See Armstrong v. State,
See OCGA § 17-7-54 (a) (“Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood hy the jury shall he deemed sufficiently technical and correct. The form of every indictment shall he substantially as follows: Georgia,_County. The grand jurors selected, chosen, and sworn for the County of_, to wit:_, in the name and behalf of the citizens of Georgia, charge and accuse (name of the accused) of the county and state aforesaid with the offense of_; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same), contrary to the laws of said state, the good order, peace, and dignity thereof.”).
To he clear, we are not suggesting that an indictment that does not meet any of these criteria is per se void or voidable. We simply make these suggestions with the intention of assisting the defendant hy providing more specific notice of the crimes charged, while assisting the State in proactively preventing otherwise meritless challenges to indictments.
See, e.g., Henderson v. Hames,
See State v. Shabazz,
See OCGA § 17-7-54 (a); Falagian v. State,
See Corhen v. State,
See, e.g., id. at 501 (4) (noting that each count of the indictment “sufficiently apprises each of the named defendants of what he or she must be prepared to defend against by identifying the specific statute and subsection under which he or she was charged, giving the date(s) on which each crime was committed, describing the manner in which the crime was committed, providing the address of each residential property at issue, identifying the victim(s) of each crime, and, when applicable, providing the exact monetary figure(s) for the fraudulent misrepresentations or omissions or the value of the stolen property”) (citations omitted).