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State v. O'Neal

Court of Appeals of Georgia, Fourth Division

October 10, 2019

THE STATE
v.
O'NEAL

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Doyle, Presiding Judge.

         The State appeals from the grant of Wesley O'Neal's motion to quash an indictment accusing him of violating his public oath, committing simple battery, and making a false statement in connection with his employment as a corrections officer. The trial court granted the motion to quash on the ground that the State failed to follow the notice and other procedural requirements in OCGA § 17-7-52, which is applicable to certain indictments against peace officers. On appeal, the State contends that the trial court erred by concluding that OCGA § 17-7-52 applied because the record failed to show that O'Neal committed the allegedly criminal conduct while in the performance of his duties. For the reasons that follow, we affirm in part and reverse in part.

         "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."[1]

         The relevant record is sparse. It contains the indictment, O'Neal's motion to quash the indictment, the parties' briefs, and the trial court's order; by consent of the parties, there was no hearing nor any evidence proffered.[2] The indictment shows that in June 2018, a grand jury returned a true bill accusing O'Neal as follows:

Count 1. . . [V]iolation of oath by public officer, for that the said Wesley O'Neal . . . between the 1st day of January, 2016, and the 17th day of June, 2018, the exact date of the offense being unknown . . . did unlawfully, willfully, and intentionally, while employed as a corrections officer at the Johnson State Prison, violate the terms of his oath of office by participating in and facilitating acts of abuse against inmates who were incarcerated at the Johnson State Prison, contrary to the laws of [Georgia], . . . It is an essential averment and a material allegation that the acts described in this count are separate and distinct from the acts described in all other counts of this indictment.
Count 2. . . [S]imple battery, for that the said Wesley O'Neal . . . on or about the 1st day of May, 2017, did unlawfully and intentionally make physical contact of an insulting and provoking nature to Thurston Waller by striking the said Thurston Waller, contrary to the laws of [Georgia] . . . . It is an essential averment and a material allegation that the acts described in this count are separate and distinct from the acts described in all other counts of this indictment.
Count 3. . . [M]aking a false statement, for that the said Wesley O'Neal . . . on or about the 27th day of September, 2017, did unlawfully, knowingly, and willfully make a false statement and representation to an agent of the Georgia Department of Corrections by stating he was not involved in any incidents where Johnson State Prison inmates were assaulted, a matter within the jurisdiction of Georgia Department of Corrections, contrary to the laws of [Georgia]. . . . It is an essential averment and a material allegation that the acts described in this count are separate and distinct from the acts described in all other counts of this indictment.

         O'Neal moved to quash the indictment on the ground that he had not been provided notice and an opportunity to be heard before the grand jury deliberated as required by OCGA § 17-7-52. That Code section provides, in relevant part:

Before a bill of indictment . . . against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is presented to a grand jury, the officer shall be given a copy of the proposed bill of indictment . . . and notified in writing of the contemplated action by the prosecuting attorney. . . . [S]uch notice shall inform such officer . . . [t]hat he or she may request, but cannot be compelled, to testify as a witness before the grand jury regarding his or her conduct. . . .[3]

         In his brief in support of the motion to quash, O'Neal argued that at the time the alleged crimes were committed, he was employed as a POST-certified corrections officer, he was on duty during the events, and "there is no evidence that [he] ever stepped away from his duties as a peace officer."

         The State opposed the motion, noting the absence of any evidentiary proffer as to the relevant events or factual context. The parties agreed not to have a hearing, and the trial court decided the motion on the briefs and the indictment. The court granted O'Neal's motion, ruling that "the alleged actions charged occurred while the Defendant was in the performance of his duties and it does not appear the Defendant 'stepped away' from his job." The State now appeals.

         The State points to the fact that the record contains no factual development of the circumstances alleged in the indictment, so the trial court had no basis to conclude that O'Neal "was in the performance of his duties" when he committed the alleged criminal acts. We agree.

         As noted above, OCGA § 17-7-52 applies to indictments "charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties. . . ." Thus, the rights afforded by OCGA § 17-7-52 "come into play if the crimes charged were committed while ...


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