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Yancey v. State

Court of Appeals of Georgia, Second Division

June 16, 2017

YANCEY
v.
THE STATE.

          DOYLE, C. J., MILLER, P. J, and REESE, J.

          DOYLE, CHIEF JUDGE.

         After a grand jury returned an indictment for second-degree burglary[1] 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), [2] and 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.

         We 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.[3]

         The 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.

         On 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 . . . ."[4] 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.

         At the 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.

         Matthew 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.

         Justin Fountain, [5] 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.

         Lauren 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.

         Officer 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 Lowery's case.

         Ronnie 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.[6] 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 time.

         Ricky 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.

         After 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 ...


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