C. J., MILLER, P. J, and REESE, J.
grand jury returned an indictment for second-degree
burglary against him, William Todd Yancey filed an
application for interlocutory appeal from the trial
court's order denying his motion to quash the indictment.
This Court granted Yancey's application, and he appeals,
arguing in six separate enumerations of error that the trial
court erroneously denied his statutory right to notice and to
appear before the grand jury pursuant to OCGA § 45-11-4
(c), (g) (2015) and OCGA § 17-7- 52 (a) (2015),
the trial court erred by allowing into evidence a copy of the
videotape of the purported entry into the office. For the
reasons that follow, we reverse.
review the trial court's interpretations of law and
application of the law to the facts de novo and its findings
of fact for clear error.
record reveals that Yancey worked for a number of years under
Sheriff Ladson O'Connor as an investigator primarily
responsible for property crimes at the Montgomery County
Sheriff's Department. On the night of June 15, 2015,
Sheriff O'Connor died as a result of a wreck during a
high-speed chase of Jim Lowery, whom Yancey had been
investigating. Lowery fled after the crash, and a manhunt
quickly ensued involving numerous police officers from
multiple jurisdictions. That same night, Sheriff
O'Connor's individual office within the Sheriff's
Department was opened, and a safe and possibly other items
were removed by individuals who worked at the Department.
February 1, 2016, the district attorney presented the facts
of the case to the grand jury, which returned an indictment
against Yancey, charging that he individually and as a party
to a crime "without authority and with intent to commit
a theft therein, enter[ed] the office of Sheriff Ladson
O'Connor . . . ." It is undisputed that Yancey was not
served with notice of the grand jury and did not appear
before it under OCGA §§ 17-7-52 and 45-11-4.
Thereafter, Yancey moved to quash the indictment, arguing
that the State violated his rights to notice and an
opportunity to appear and present a statement to the grand
jury. Yancey did not testify at the hearing; however, his
attorney argued that Yancey had entered O'Connor's
office that night through the already-open door to retrieve
Lowery's case file, which he thought might contain
information helpful in ascertaining Lowery's whereabouts.
hearing on the motion to quash, Jerry Sikes,
O'Connor's administrative assistant, testified that
O'Connor maintained an office in the Sheriff's
Department, which office he locked when absent because some
items kept in the office had disappeared prior to the events
in question. Sikes also testified that Yancey frequently used
the office during work hours. Sikes testified that he was
second in the chain of command and was responsible for
scheduling but was on vacation out of state when O'Connor
died. Sikes testified that Yancey and the other investigator
(Matthew Mallory) shared on-call duties for nights and
weekends when they were not working - their normal shift
being 9:00 a.m. to 5:00 p.m. Sikes testified that Yancey
sustained a gunshot wound about two weeks prior to
O'Connor's death, but he continued to work full-time
after the injury.
Mallory, a deputy with Montgomery County, was called into
work the night of O'Connor's death. Mallory first
arrived at the Sheriff's Department where he stayed for
about 45 minutes, and as he was leaving, he met Yancey in the
parking lot. Mallory then went to the crash scene, and
finally arrived at the mobile command station at 10:30 p.m.,
where he saw Yancey around 11:45 p.m. or 12:00 a.m. Malloy
testified that Yancey was involved in the discussions about
Lowery at the mobile command station, and although he could
not remember whether Yancey was there all night, Mallory
recalled seeing him the following afternoon. Mallory
testified that Yancey was working during the weeks between
his injury and O'Connor's death.
Fountain,  the other investigator on the Montgomery
County force, testified that Yancey worked during the time
between his injury and O'Connor's death. Fountain
testified that on the day of O'Connor's death, Yancey
had been at the Sheriff's Department with a case file on
Lowery, which file he had left in O'Connor's office.
Fountain spent the evening with O'Connor, and when he
returned home for the night, he saw O'Connor's
cruiser engaged in a high-speed chase and radioed into
dispatch and directly to O'Connor for details, later
going into the department and then to the command station.
Fountain could not remember if he saw Yancey with the file at
the command site, but he recalled that Yancey was assisting
other agencies with the investigation. A week later, Fountain
testified that he found a safe in the back seat of his
personal truck, and he later opened it at Sikes's
direction, finding about $350 in cash in the safe.
Sherling, an assistant district attorney in the circuit
serving Montgomery County, was present at the mobile command
station on the night of O'Connor's death. She saw
Yancey at the command station and discussed suspect Lowery
with Yancey, but she did not recall seeing him with any files
or papers. Sherling was unable to testify regarding a
timeline for the evening.
Cody Clifton, who was working as a road seargent for
Montgomery County at the time of O'Connor's death,
testified that Yancey arrived at the mobile command station
and assisted with the investigation of Lowery, giving
possible locations for searches based on his previous work on
Bivens, who became chief deputy in Montgomery County after
O'Connor's death, testified that he was with Yancey
when he sustained his injury and testified that while serving
a search warrant on a house and seizing some firearms, one of
the weapons discharged, injuring Yancey's shoulder.
Bivens testified that after reviewing the personnel files at
the department, he discovered a return-to-work slip for
Yancey, clearing him to return to work and to drive, which
slip was dated July 29, 2015. Bivens could not testify whether
Yancey worked in some capacity between his injury and July 29
because Bivens was not employed at Montgomery County at that
Dykes testified that he drove his girlfriend, Kim Young (a
dispatcher for the Department), to the Sheriff's
Department on the night of O'Connor's death. He was
familiar with the officers at the department and said many
were around and some were in Sheriff O'Connor's
office while he was there. Dykes testified that Young had an
application on her phone that received a video feed from the
department security cameras, and he used his phone to record
the feed showing the individuals leaving O'Connor's
office because Young did not know how to save the video feed.
He provided a copy to the Georgia Bureau of Investigation
("GBI"), and he did not know if the original
footage existed. The video showed the open back door to the
Sheriff's office with various men and one woman coming
out, one of whom was carrying a safe; some time later, other
individuals left, one of whom had a sling around one arm and
was carrying papers. None of the individuals appeared to be
concealing their identities or their presence in the office.
O'Connor's death, the GBI was asked to investigate
the break-in at his office. After reviewing the security
footage, GBI investigators interviewed Yancey. Yancey told
them that he had been called into work the night of
O'Connor's death, that he was under the influence of
pain medication and probably should not have been working,
that he remembered hearing people inside O'Connor's
office when he arrived at the sheriff's department, that
he did not remember ...