State v. Lindsay
State v. Lindsay
Opinion of the Court
The State appeals from the Superior Court of Colquitt County’s grant of former police officer Daniel Lindsay’s motion to suppress allegedly perjurious testimony given by him under oath to a grand jury convened in December 2000 to consider other, separate charges against Lindsay. Because Lindsay, in violation of State law, was not afforded the protections of OCGA § 45-11-4 when making his statement to the grand jury, we affirm the grant of his motion to suppress.
In 1999, while still a police officer and during the performance of his official duties, Lindsay allegedly made false statements and writ
Via letter, Lindsay then asked the grand jury foreman to be allowed to testify. The grand jury determined that it wished to hear from Lindsay and permitted him to do so. The indictment was presented to the grand jury on December 11, 2000 (“December Indictment”). Before Lindsay’s testimony, the district attorney informed him that his testimony would be that of any other witness; that anything he said could be used against him; that he would be subject to cross-examination; and that his attorney could not be present. Accepting these conditions rather than relinquish the opportunity to give a statement to the grand jury, Lindsay testified and was subject to cross-examination. A true bill was returned on the December Indictment. And statements Lindsay made during the course of the State’s cross-examination became the basis for a separate, May 7, 2001 indictment for perjury (“May Indictment”). Thereafter, the State nolle prossed the December Indictment.
Prior to trial on the May Indictment, Lindsay filed a motion to suppress his December 2000 testimony before the grand jury that formed the basis for the May Indictment. Lindsay claimed that such testimony was obtained in violation of State law since he was not afforded the rights outlined in OCGA § 45-11-4. The trial court agreed and suppressed Lindsay’s grand jury testimony. The State appeals. Held:
1. The State contends that (a) the rights provided by OCGA § 45-11-4 do not apply to Lindsay because he was not a police officer at the time he testified before the grand jury about the acts contained in the December Indictment, and (b) even if such rights did apply, Lindsay’s testimony before the grand jury was otherwise “voluntary” and thus a violation of OCGA § 45-11-4 was irrelevant.
Resolution of this case is more complicated than it would appear at first blush and certainly more complex than the arguments of the
(a) (i) It is a well-established rule that an appellate court applies the law as it exists at the time its opinion is rendered.
The accused shall have the right to appear before the grand jury to make such sworn statement as he or she shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and . . . [t]he accused and his or her counsel shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation.4
Also included in the 2001 amendment, § 3, is a subsection (e) which states that “This Code section shall only apply to a public officer holding office at the time of indictment and not to former office holders.”
(ii) OCGA § 45-11-4 is made applicable to peace officers like Lindsay through the specific provisions of OCGA § 17-7-52; Ga. L. 1997, p. 879, § 1, which provisions state that,
Before an indictment against a 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 returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be .afforded the rights provided in Code Section 45-11-4.8
OCGA § 17-7-52 was also amended in Ga. L. 2001, p. 487, § 5, as a part of the new Corruption Prevention Act and, as amended, includes the provision that it applies to “a present or former peace officer.”
(iii) Accordingly, to follow the legislative mandate wherein 2001 amended Code section 45:ll-4 applies to crimes committed “before, on, and after”
Further, the Supreme Court’s holding in Dudley v. State
Moreover, the situation is not rescued by the 2001 amendment to OCGA § 17-7-52 referencing “present or former peace officers” because, as we have also noted above, we have been legislatively instructed to apply such Code section only to crimes committed “on or after”
(iv) So, there is a dilemma. Clearly, by amending OCGA § 17-7-52 to apply to “former” peace officers, the General Assembly meant to follow the Supreme Court of Georgia’s rationale in Dudley wherein that Court found “a peace officer should not lose such protections [under OCGA § 45-11-4] for the officer’s actions in the performance of duty merely because the officer is no longer employed as such at the time of prosecution.”
(v) Notwithstanding, an appellate court is bound to apply the law as it exists at the time its opinion is rendered, unless application of a new statute violates constitutional principles.
On its face, unamended OCGA § 45-11-4; Ga. L. 1990, p. 1969, § 1, promulgated a series of substantive rights that accrued to Lindsay as a peace officer at the time he was charged with committing the 1999 criminal acts which were the subject of the December Indictment.
Accordingly, the State erred in denying Lindsay the rights outlined in unamended OCGA § 45-11-4; Ga. L. 1990, p. 1969, § 1. Refusing to permit Lindsay’s attorney to be present during the grand jury proceeding and subjecting Lindsay to the cross-examination which elicited the alleged perjury that formed the basis of the May Indictment violated State law.
(b) The State argues that even if the rights provided in OCGA. § 45-11-4 should have been applied to Lindsay, he “voluntarily” chose to testify in front of the grand jury, with full knowledge that he would be cross-examined and that his attorney would not be allowed
However, we find that denying a party the rights to which he is entitled and which he specifically requests — so that the only remaining decision is to proceed without the protections secured by those rights or not to proceed at all — turns the notion of “voluntary” on its head. Indeed, for the State to force a Hobson’s choice upon a party and then argue to this Court that the subsequent choice made was “voluntary” seems ill-advised. We reject such argument.
We further reject the State’s additional argument that the entry of a nolle prosequi on the December Indictment rendered “moot” any issue with regard to a violation of OCGA § 45-11-4. The State fails to explain any legal basis for this assertion. But, as best we can determine, the implied argument is that, because the acts contained in the December Indictment are the ones about which Lindsay was testifying when the State violated OCGA § 45-11-4, then dismissing the December Indictment will resolve the violation. However, this argument fails to take into account that Lindsay’s allegedly perjurious grand jury testimony obtained in violation of OCGA § 45-11-4 is the subject matter of the May Indictment. Dismissing the December Indictment has no effect on a prosecution under the May Indictment, the subject matter of which was obtained in violation of State law.
2. Following the May Indictment, Lindsay filed a pretrial motion to exclude his grand jury testimony. A motion in limine can be such as to seek to suppress evidence illegally obtained under the Fourth Amendment — or under any other provision of law.
The fact that Lindsay styled his motion as a “Motion to Suppress” as opposed to a “Motion in Limine” does not change this result. “We have long . . . departed that realm of law where runes and sigils supplant reason and substance.”
Judgment affirmed.
It is undisputed that Lindsay was in the performance of his official duties as a peace officer when the acts allegedly occurred.
Hill v. Willis, 224 Ga. 263, 265 (161 SE2d 281) (1968); Houston v. State, 192 Ga. App. 73, 74 (383 SE2d 571) (1989).
OCGA § 45-11-4, Ga. L. 1990, p. 1969, § 1, states, inter alia,
The accused shall have the right to appear before the grand jury to make such sworn statement as he shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his counsel to examine the state’s witnesses. The accused and his attorney shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation.
OCGA § 45-11-4 (g).
Ga. L. 2001, p. 487, § 3 (e).
(Emphasis supplied.) OCGA § 45-11-4; Ga. L. 1990, p. 1969, § 1.
(Emphasis supplied.) Ga. L. 2001, p. 487, § 6 (d), uncodified. See State v. Martin, 266 Ga. 244 (1) (466 SE2d 216) (1996).
OCGA § 17-7-52 (a); Ga. L. 1997, p. 879, § 1.
Before an 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 returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4.
(Emphasis supplied.) Ga. L. 2001, p. 487, § 5. See also Legislative Headnote Ga. L. 2001, p. 487, wherein the General Assembly specifically amended OCGA § 17-7-52 “so as to include former peace officers.”
(Emphasis supplied.) Ga. L. 2001, p. 487, § 6 (c).
(Emphasis supplied.) Ga. L. 2001, p. 487, § 6 (d).
Ga. L. 2001, p. 487, § 3 (e).
273 Ga. 466 (542 SE2d 99) (2001).
(Punctuation, omitted; emphasis supplied.) Id. at 467.
(Emphasis supplied.) Ga. L. 2001, p. 487, § 6 (c).
Dudley v. State, supra at 468.
See Ga. Const, of 1983, Art. I, Sec. I, Par. X; Canton Textile Mills v. Lathem, 253 Ga. 102, 105 (1) (317 SE2d 189) (1984).
Enger v. Erwin, 245 Ga. 753, 754 (267 SE2d 25) (1980).
Polito v. Holland, 258 Ga. 54, 55 (3) (365 SE2d 273) (1988).
Dudley v. State, supra at 466 (“the protections of [OCGA § 45-11-4] extend to a peace officer charged with criminal misdeeds in office”).
Id. at 468.
OCGA § 1-3-5.
In deciding this case, we find it unnecessary to reach whether the retrospective application of Ga. L. 2001, p. 487, § 3 will result in future constitutional concerns and therefore make no ruling on this issue. In any event, this Court cannot decide the constitutionality vel non of a statutory provision. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1).
State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864) (1984).
Anderson v. State, 267 Ga. 116 (1) (475 SE2d 629) (1996).
See State v. Strickman, supra at 288; State v. Peters, 213 Ga. App. 352, 354 (444 SE2d 609) (1994).
See Bullard v. State, 242 Ga. App. 843, 845 (3) (530 SE2d 265) (2000).
Tuggle v. Tuggle, 251 Ga. 845; 846 (2) (310 SE2d 224) (1984).
State v. Strickman, supra at 288; accord State v. Peters, supra at 354.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.