*1 178 issuing prescribing search war- method of Moreover, a statute
sue. rants light of, and conform all in the construed read and must be granting im- respects of the constitution to, the essential be It should munity seizures.” and searches unreasonable guaranty, dealing a valuable with we are here in mind that bоrne part subject Rights, Amend- the Fourth matter of Bill Constitution, in the Con- embodied and national to our ment stitution. fringement.’ against carefully guard right, must this We, have who Pruitt ” 142) App. 659, 664 SE2d State, 123 Ga. v. princi- with these be consistent in Hill to the decision I find accordingly of the trial court. ples, the decision affirm would Pope joins Judge in this dissent. to state that authorized am 5, 1990 Decided December 20, 1990 Rehearing December denied Attorney, Harry Brown, Gordon, Gerald W. Assistant N. District appellant. Attorney, District Tolley, appellee. Aldridge, Tolley D. Cook, Noell, Edward & v. THE STATE. WILLINGHAM
A90A1004.
(401 SE2d Carley, Judge. Chief Appellant guilty jury 13 counts of and found was triеd before a University Georgia Li- of documents from the theft brary. conversion appeals his motion for new trial. He from the denial of suppress is enumerated as 1. The denial of error. Appellant’s State, v. 280 reliance Hill 193 582) (1989) misplaced. arguably might be rele SE2d Insofar as Hill case, v. State vant to the facts of the instant it has been overruled. 57) (1990). Appellant’s Harber, remain 198 Ga. SE2d ing without been and are found to be contentions have considered were merit. The conducted in full to find that all searches trial court was authorized compliance and statu constitutiоnal tory requirements. appel-
2. sustain We find no error the trial court’s failure to prospective ju- challenge lant’s rors who not otherwise directed towards for cause which was employees University Georgia, were but who were University Georgia assigned to, in, 224) 894) (6) (276 Library. State, SE2d See Jоrdan v. 247 Ga. (2) (386 (1981); (1989); App. 9, Culbertson v. 193 Ga. (1) (227 Hickox v. (10) (5th States v. Boyd, See also United 446 F2d Cir. 1971). prospective This is not a case employ- wherein the were appellant party Compare ees of other to the case. Kesler v. (6) (291 497) (1982); Bi-Lo, Daniel Inc., App. 849, Only appellant the State were kinship this criminal case. While *2 may automatically disqualify prospective victim a criminal (b) pursuant (4), case OCGA employment by 15-12-163 mere § University Georgia of when University the actual victim was the of Library not per disqualification is se under the above cited holdings. admit,
3. It was not error
appellant’s objections,
over
numer
ous
adequately
exhibits which were
shown to be business records of
University
Library.
Gray
of Georgia
Mtg.
See
v. Cousins
&c. In
vestments,
(1) (257
App.
365)
150 Ga.
(1979);
296
SE2d
Lewis v.
Bank,
(1) (237
645) (1977)
United Cal.
App.
143 Ga.
SE2d
aff’d
(242
581) (1978);
4. The State, when favorably construed most for the was sufficient to authorize a proof rational trier of to find ap fact pellant’s guilt beyond not, therefore, reasonable doubt and it was deny error to his motion for acquittal. a directed verdict Ad See State, (1) cock v. (318 (1984) SE2d aff’d 253 Ga. 328
5. Having appellant’s considered fatal argument, variance we find that it has evidence, no mеrit. The when favorably construed most would authorize a finding that within statute limitations, appellant committed the crimes that the multi-count alleged indictment he had committed. See Decker v.
App. 707, Judgments Deen, J.,P. McMurray, J.,P. Birdsong and affirmed.
Cooper, JJ., Banke, J., concur. P. specially. Sognier сoncurs JJ., Pope, dissent. Beasley, J., 1, 3, concurs in Divisions 4 and but dissents as to Division and as judgment.
Banke, Presiding Judge, concurring specially. Pursuant 20-3-72, to OCGA university police officers “have the § power to make arrests for offenses upon any property committed under jurisdiction regents. board of . . .’’As the officers in present case were investigating university thefts of property which had occurred university property, it follows that were acting entirely within the scope of their law juris- enforcement diction under reason, 20-3-72. For this I agree § the trial court properly acted in denying suppress. dissenting. Judge, Sognier, respectfully
I dissent. day that banc on the same decided en 1. Since this case will be 57) (1990) issued, Harber, is State v. App. thor are entitled to the same parties in the instant case believe the in Harber. given issue as of the search and seizure ough treatment that Hill my Hence, again Í state view for this case 582) (1989) correctly decided and controls was at by appellant. Since the searches raised search and seizure issue 1990 amend date of the prior to the effective issue were conducted 1-3), (Ga. 17-5-20; p. L. 17-5-21 §§ ments to OCGA §§ university system po directly addressing only authority beyond the confines of a warrants and execute search lice to obtain of the defend in Hill. overruling the denial campus is our decision 20-3- held that because OCGA suppress, this court § ants’ motion to offenses system police to make arrests “for university 72 authоrized jurisdiction of the board upon any property under committed private prop upon any public or regents and for offenses committed jurisdiction of the erty yards any property under the within 500 “ board,” to the territorial likewise ‘must be confined warrants *3 campus.’ at 281. limits of the Id. [Cit.]” in the сase at bar were not It is that the searches uncontroverted thefts did oc- Although limits. the conducted within these territorial regents,” we property jurisdiction cur “on under the of the board university in Hill that statutory governing the enactments concluded law enforce- system police cоntemplate the exercise of their do not in 20- beyond defined OCGA powers ment the territorial boundaries § the university police officers who conducted 3-72. note that the officers, 17-5-24 peace at and OCGA searches issue were certified § by warrant execution of a search has been construed to authorize the Bruce v. peace jurisdiction. a certified officer outside his arrest 736) (1987). Nonetheless, a certified statutory peace authority only express authoriza- officer’s arises (8) by OCGA 35-8-2 public employment tion or virtue of or service. § (A). оfficers university police, other law enforcement system Unlike specified duties given are a number of authorized under law OCGA 35-2-33 powers power in to arrest. See addition to the § (GBI (state (county police); OCGA 35-3-8 patrol); OCGA 36-8-5 § § contrast, (GBI OCGA agents). agents); OCGA 35-3-9 narcotics § § (Ga. 370), 20-3-72, p. L. and is codi- which was in enacted only is the postsecondary chapter fied in of Title education power to univer- specifically grants any statute that law enforcement beyond system authority such officers sity police. Accordingly, any specified general in from the that OCGA 20-3-72 must arise § universitiеs. See regents regulate of the board of create and seq. IV, Const., VIII, I; § Sec. Par. et There is no Art. OCGA 20-3-20 Chapter or elsewhere in our other statute Title Article police regents any powers beyond grants Code which board of university system. university system Since territorial limits of police express authority beyond university system statutory have no property, employer, regents, and their the board of does not have the grant powers, authority peace such I cannot officer construe system university police certification cise law enforcement tо authorize to exer-
powers beyond the territorial limits established by § OCGA 20-3-72.
This conclusion consistent amendments to 17-5-21, §§ OCGA 17-5-20 and which were enacted after our decision supra. provide paragraph Hill, § OCGA 17-5-20 was rewritten to (a) only upon application may “[a] that search warrant be issued political charged of an officer of this state or its subdivisions with the duty enforcing currently peace the criminal or a laws certified of- engaged duty, ficer in the course of official whether said officer is em- (1) ployed by political law [t]he a enforcement of: state or unit a sub- (2) university, college, state; division [a] or school.” The para- § revision OCGA 17-5-21included the addition of a new (d) graph campus providing police that when a officer executes a by campus police “beyond jurisdiction search warrant campus policemаn pursuant the arrest of a 20-3-72,
to Code Section the execution of jointly peace by such search warrant shall be made certified of- employed by university peace ficer . . . and a certified officer of a political law enforcement unit of the subdivision wherein campus police although including revisions, will be conducted.” These time, the search and seizure laws for the first that indicate Assembly express General peace retained an distinction between certified university college officers and other certified peace campus police authority officers, and did not elect to extend to equal possessed by to that law enforcement officers of the State or its political subdivisions. “ ‘ long recognized “[proceedings This court has for the is- every strictly construed, suance of seаrch are warrants to be con- *4 statutory requirement fully including met, stitutional and must be all required by may statute, formalities before a search valid warrant is- prescribing issuing Moreover, sue. a of statute the method search war- light rants of, must be read construed the and and conform all respеcts granting to, essential the of im- the constitution munity from unreasonable searches and seizures.” It should be a dealing guaranty, borne in mind that here we a are with valuable part Rights, subject of Bill of matter of the Fourth Amend- ment Constitution, to our national and embodied Con- right, carefully guard against We, stitution. who have this must ” (182 659, v. Pruitt fringement.’ February 2 and 17 and result, on I find that the searches As a time, applicable at the the law under 30 were not authorized March by denying appellant’s trial court erred consequently find the and Hill, supra at 281. seized. See suppress the evidence the one consensual appellant that agree I further with sought the officers and February was invalid because conducted on express purpose obtaining of entry appellant’s home for gained thus, searches, appel- despite prior and during seen an item had consent, in this search was tainted seized apparent the evidence lant’s under the prior illegal searches poisonous tree of the fruit of the as States, 471, Wong Sun v. United S. 371 U. set forth standard 455) (1963). 441, without decid- 407, assuming, Even SC 9 LE2d coerced, voluntary and not to search was appellant’s that consent ing, Februаry 3 could not be used search on during seized evidence sufficiently attenuated the search was appellant at trial unless against Robinson, v. States 625 F2d searches. United prior illegal from the 1980); Brown v. (5th Cir. 514) (1988). temporal prox- considered are the The factors to be consent, intervеn- presence imity activity and the illegal of the mis- circumstances, flagrancy and of the official purpose and the ing 1220; Brown, Robinson, Here, supra. there were no supra at conduct. illegality, and Of- in the chain of intervening circumstances or breaks appellant’s home univеrsity police returned to ficer Jones testified the prior map they had seen on express purpose retrieving this search significant lapse of time between entries. Nor was there a I would reverse day Accordingly, the one earlier. conducted suppress. motions dеnial by erred not agree appellant 2. I also the trial court with by the employed who were excusing prospective jurors for cause all adopted in criminal University Supreme Court has Georgia. Our disqualifying for cause initially applied rule in civil cases of cases the еntity as the defend- potential the same who are employees. discharge ant when the defendant has Kesler 470-471 pro- rule that a adopt we for criminal cases the
believe also should “ exists spective disqualified cause ‘when there juror should be may which himself and one of business relation between Bi-Lo, Inc., Daniel v. tend to influence the verdict.’ [Cit.]” “ such rule is ‘The wisdom of [a] any employee during plight substantiated when one considers the purpose “The for voir dire is the ascertainment single voir dire. the merits ability the cause on impartiality jurors, their to treat (Cit.) prior inclination.” objectivity and freedom from bias of his performance An in the subpoenaed jury individual service *5 public duty upon should not be affirmatively nega- called answer tively impact way with its resultant him upon personally either question: your employment prevent you “Would fulfillment yоur duty juror sworn as a fairly impartially to act and without any parties as bias between the in this case?” order to [e]nsure party panel that each obtains a impartial it is essential regardless rule that presumption employees should be held competent juror to serve as a in employer a case which the is a party.’ who, This rule is although not suit, named in the have a financial or other interest the outcome of ‘ the litigation to be employee be, tried. . . . “An . . . may [Cits.] instances, rare impartial juror an in passing upon rights of his employers. possible It is for judgе juror absolutely to be so fair try that he could his own cause. But upon there must be a rule subject, only and the adopted rule that be safety can is one recognizes which the interest humanity generally which suscepti- ble and not a rule based exceptions.’” rare Id. at 850- [Cit.]” Surely 851. the Sixth Amendmеnt entitles a criminal defendant protection. Where, here, same as prospective jurors seven of the were employed by the victim of the dependent upon theft and were employer income, for their disqualified should have been for cause, and the failure to do so constitutes reversible error. See id. at (1); see Crumpton also v. Kelly, 185 245-246
I am authorized to Judge Pope state that concurs in the dissent Judge Beasley concurs 2 only Division of the dissent. Decided December Rehearing denied December
Fortson, Bentley Griffin, & Pascale, Jr., Ernest De James A. Dunlap, Jr., аppellant.
Harry Gordon, N. Attorney, District Weaver, Richard J. Assis- tant District Attorney, appellee.
A90A1085. THE STATE v. AUERSWALD.
Cooper, Judge. On March an arrest warrant was issued magistrate accusing appellee of the offense of child day he was arrested and released following molestation. The 21, 1989, on bond. On November grand jury considered an against appellee; however, indictment