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Hourin v. State

Supreme Court of Georgia

August 28, 2017

HOURIN
v.
THE STATE

          PETERSON, JUSTICE.

         Thomas Robert Hourin appeals the trial court's denial of his pre-trial motions in this criminal case. We granted Hourin's application for interlocutory appeal and directed the parties to address whether this Court has jurisdiction over an application for interlocutory appeal when the certificate of immediate review is signed by a judge different than the judge who signed the order to be appealed. We answer that question in the affirmative but reject Hourin's arguments that the statutes under which he is charged are unconstitutional. We also determine that the trial court erred in concluding that officers announcing their presence while simultaneously entering a building was sufficient to satisfy Georgia's knock-and-announce statute. Because that error was the trial court's basis for denying Hourin's motion to suppress, we vacate that order and remand for consideration of additional issues not decided by the trial court.

         Hourin, the non-physician owner of a medical clinic, was charged with one count of conspiracy to commit the offense of unauthorized distribution and dispensation of controlled substances in violation of OCGA § 16-13-42. Hourin filed a general demurrer and motion to dismiss the indictment, arguing that the indictment violated his due process rights under the U.S. and Georgia Constitutions. Hourin also filed a motion to suppress evidence obtained as a result of a search of the clinic.

         Hourin's motions were handled by one judge, but the certificate of immediate review was signed by another. Pursuant to an order assigning him to handle matters for the Blue Ridge Judicial Circuit from August 22 to September 2, 2016, Senior Superior Court Judge Frank Mills presided over a August 31, 2016, hearing on Hourin's motions. Judge Mills orally denied both the general demurrer and the motion to suppress. He memorialized those decisions in separate orders entered October 3, 2016, stating in each that consideration of Hourin's request for a certificate of immediate review "is reserved for the assigned judge."[1] Judge Mills explained at the hearing that he would leave the certificate of review determination for the assigned judge because he did not want to "jeopardize [her] calendar." On October 4, Superior Court Judge Ellen McElyea signed a certificate of immediate review as to both orders.

         1. We first address the threshold question of our jurisdiction. Neither of the rulings from which Hourin seeks to appeal here - the denial of a general demurrer and the denial of a motion to suppress - is a final judgment or otherwise subject to an immediate appeal under OCGA § 5-6-34 (a). Thus, a certificate of immediate review under the terms of OCGA § 5-6-34 (b) was required.

         OCGA § 5-6-34 (b) provides in part:

Where the trial judge in rendering an order . . . not otherwise subject to direct appeal . . . certifies within ten days of entry thereof that the order . . . is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken . . . .

         But Judge McElyea, not Judge Mills (the judge who rendered the orders), signed the certificate of immediate review. Both parties agree that this does not invalidate the certificate of immediate review or deprive us of jurisdiction. Nevertheless, it is incumbent upon this Court to inquire into its own jurisdiction even when not contested by the parties. See Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Cmty. Trust, 298 Ga. 221, 223 (1) (a) (780 S.E.2d 311) (2015). We have not previously decided whether a judge who signs a certificate of review of an order issued by a different judge of the same court nevertheless constitutes "the trial judge" under the statute. Under the facts of this case, the answer is yes. Judge McElyea presumably will preside over any trial on this case. In issuing the underlying orders, Judge Mills essentially was acting in Judge McElyea's stead as a matter of assisting the court. By the time the certificate of immediate review had issued, Judge Mills's assignment order had expired, and Judge McElyea was the judge handling the case when she signed the certificate. Judge McElyea was "the trial judge" at the time she signed the certificate of immediate review.[2]

         2. Turning to the merits of Hourin's appeal, he argues that the trial court erred in denying his general demurrer and motion to dismiss. He contends that the indictment should be dismissed for two reasons: (1) the statutes under which he is charged, OCGA § 16-13-41 and OCGA § 16-13-42, are unconstitutionally vague as to whom they apply; and (2) OCGA § 16-13-41 (h) is unconstitutional because it shifts the burden of proof to the defendant. The trial court did not err in rejecting those arguments as a basis for dismissal.

         (a) Hourin first argues that OCGA § 16-13-41and OCGA § 16-13-42 are unconstitutionally vague. We disagree.

         Where, as here, First Amendment rights are not implicated, one whose own conduct may constitutionally be proscribed cannot challenge a law on the ground that it might conceivably be applied unconstitutionally to others. See Raber v. State, 285 Ga. 251, 252 (674 S.E.2d 884) (2009). Therefore a vagueness challenge such as that raised by Hourin must be examined in the light of the facts of this case. Id.

         The indictment alleges that Hourin conspired to commit the offense of unauthorized distribution and dispensation of a controlled substance in violation of OCGA § 16-13-42. As the overt act committed in furtherance of this alleged conspiracy, the indictment alleges that Hourin possessed "13 prescriptions that were issued and signed in blank by Dr. Kelvin White, a practitioner and a person who is subject to the requirements of O.C.G.A. § 16-13-35[, ] in violation of O.C.G.A. § 16-13-41(h)[.]" OCGA § 16-13-42 (a) (1) makes it "unlawful for any person . . . [w]ho is subject to the requirements of Code Section 16-13-35 to distribute or dispense a controlled substance in violation of Code Section 16-13-41[.]" OCGA § 16-13-41 (h) provides:

It shall be unlawful for any practitioner to issue any prescription document signed in blank. The issuance of such document signed in blank shall be prima-facie evidence of a conspiracy to violate this article. The possession of a prescription document signed in blank by a person other than the person whose signature appears thereon shall be prima-facie evidence of a conspiracy between the possessor and the signer to violate the provisions of this article.

         The State does not allege that Hourin is either subject to the requirements of OCGA § 16-13-35[3] or a "practitioner" within the meaning of OCGA § 16-13-41 (h)[4] and in fact appears to concede at least that he is not the latter.

         Hourin argues that the statutes under which he is charged are unconstitutionally vague because they do not put him on notice that they apply to a person who is not a "practitioner." But regardless of whether Hourin could be convicted of violating OCGA § 16-13-42 (a) (1) or OCGA § 16-13-41 (h), and regardless of whether the statutes are vague as applied to him, Hourin's argument fails because it rests on the faulty premise that a defendant cannot be convicted of conspiring to commit a particular offense if he could not be convicted of committing the underlying offense. For this proposition, Hourin cites Gonzalez v. Abbott, 262 Ga. 671, 672 (1) (425 S.E.2d 272) (1993), where we stated, "[a] conspiracy to traffic in cocaine cannot stand if the defendant could not have been convicted for trafficking in cocaine." This imprecise language was not the holding of Gonzalez, however. See Cohens v. Virginia, 19 U.S. 264, 399 (6 Wheat 264, 5 LE 257) (1821) ("It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision."); Zepp v. Brannen, 283 Ga. 395, 397 (658 S.E.2d 567) (2008) (following Cohens and disregarding broad legal principle announced in previous case). In Gonzalez, the underlying offense - trafficking in a mixture containing cocaine - had been removed from the Georgia Code altogether. Id. at 672 (1). In other words, the underlying offense was no longer a criminal offense at all. Obviously, conspiring to commit an act that is not a crime is not criminalized by our conspiracy statute, which says that "[a] person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy." OCGA § 16-4-8 (emphasis added).

         Here, in contrast, Hourin does not contend that no one could be convicted of the underlying offense, just that the statute does not clearly criminalize his conduct because he is not a "practitioner." His argument raises the question of what it means to "conspire[]" under OCGA § 16-4-8, a term of art with a long tradition of usage in the criminal law. When the Legislature uses such a term of art, it presumably adopts the longstanding interpretation of that term unless it says otherwise. See Lathrop v. Deal, __Ga.__, __(No. S17A0196, decided June 19, 2017); see also Salinas v. United States, 522 U.S. 52, 63 (118 S.Ct. 469, 139 L.Ed.2d 352) (1997) (presuming Congress used the term "to conspire" in its conventional sense and based on certain well-established principles). A defendant may be said to "conspire" even if he did not intend to commit the underlying offense himself; the government must prove only that the defendant reached an agreement with the intent that the crime be committed by some member of the conspiracy. See Ocasio v. United States, __U.S.__, __(136 S.Ct. 1423, 194 L.Ed.2d 520) (2016); see also Hicks v. State, 295 Ga. 268, 272 (1) (759 S.E.2d 509) (2014) ("[I]f two or more people enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor." (citation omitted)). It thus is well established that a defendant may be said to "conspire" even if he is in a class of persons who could not be convicted of the underlying crime. See Ocasio, __U.S. at__; see also Salinas, 522 U.S. at 64; Gebardi v. United States, 287 U.S. 112, 120-121 (53 S.Ct. 35, 77 LE 206) (1932); United States v. Rabinowich, 238 U.S. 78, 86 (35 S.Ct. 682, 59 LE 1211) (1915); United States v. Holte, 236 U.S. 140, 145 (35 S.Ct. 271, 59 LE 504) (1915). Thus, even if Hourin could not be convicted of violating OCGA § 16-13-42 (a) (1) or OCGA § 16-13-41 (h), he may be prosecuted for conspiring with another to violate those provisions. It therefore does not matter whether the statutes apply directly to someone in Hourin's shoes at all, let alone whether they clearly put Hourin on notice that they do. Hourin does not contend that the statutes were vague as to the doctor with whom he is charged with conspiring. Hourin's vagueness argument fails.

         (b) Hourin also argues that OCGA § 16-13-41 (h) is unconstitutional because it relieves the State of its burden to prove the elements of a conspiracy. Again, we disagree.

         OCGA § 16-13-41 (h) provides that "possession of a prescription document signed in blank by a person other than the person whose signature appears thereon shall be prima-facie evidence of a conspiracy between the possessor and the signer to violate the provisions of [Article 2]." Hourin argues that under this provision the State may obtain a conviction by showing only that he possessed the signed prescription. The Due Process Clause of the Fourteenth Amendment requires the State to prove beyond a reasonable doubt every element of a charged offense. See Carella v. California, 491 U.S. 263, 265 (109 S.Ct. 2419, 105 L.Ed.2d 218) (1989). Jury instructions relieving the State of this burden thereby violate a defendant's due process rights. Id. In considering whether such a violation occurs, we "ask whether the presumption in question is mandatory, that is, whether the specific instruction, both alone and in the context of the overall charge, could have been understood by reasonable jurors to require them to find the presumed fact if the State proves certain predicate facts." Id. Merely permissive phrases, such as "intent may be inferred, " "it is reasonable to infer, " or "you ...


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