Brief of Appellant From Lister 05_04_15

IN THE SUPREME COURT
STATE OF GEORGIA
LISTER W. HARRELL,
Appellant,
v.
STATE OF GEORGIA,
Appellee.
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CASE NO.: S15Al045
BRIEF OF APPELLANT
L
STATEMENT OF FACTS/CASE
REFERENCE NOTE: T refers to the trial transcript. T2 refers to the
transcript of the hearing on pre-trial motions. T3 refers to the transcript of the
hearing on Appellant's Motion for New Trial. R refers to record entries.
On March 15, 2011, Appellant was charged with violating 0.C.G.A.§44-714.1 by having the electricity from an alleged tenant's residence cut off. That
code section makes it "unlawful for any landlord knowingly and willfully to
suspend the furnishing of utilities to a tenant until after the final disposition of any
dispossessory proceeding". The statute provides for a maximum $500.00 fine. No
period of incarceration may be imposed upon conviction. T-118, Lines 9-23.
After Appellant was arrested, he was made to post a cash bond in the
amount of $1,000.00, twice the amount of the maximum fine. T-119, Line 7.
Appellant experienced financial difficulties and was required to file two (2)
bankruptcy petitions. In addition to these matters, he had to conduct day to day
business activities. Therefore, he wanted to go ahead and dispose of what should
have been an extraordinarily minor matter. He asked Dodge County District
Attorney Tim Vaughn on at least two (2) occasions to simply forfeit the bond and
allow him to go ahead and pay the $500.00 fine. Vaughn refused, telling
Appellant "you're not going to get off that easily". T-119 thru T-120, Lines 1-19.
At some point, towards the beginning of2013, there was a scheduling
conflict between a bankruptcy court hearing and the Dodge County Superior Court
calendar call. Appellant did not attend the Dodge County calendar call, believing
that it had been continued. T-122, Lines 18-25 thru T-125, Lines 1-17.
As a result of Appellant's failure to attend calendar call, a bench warrant
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was issued for his arrest. The case could have been disposed of then and there,
without a bench warrant, by simply forfeiting the bond and disposing of the case.
Instead, Vaughn constructed a multi-state manhunt for Appellant, enlisting the aid
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of the United States Marshall's Office 1 for an offense not unlike littering. T-122,
Lines 18-25 thru T-125, Lines 1-17.
Just prior to his arrest, Appellant learned of the manhunt and attempted to
have the bench warrant lifted by talking to the Dodge County Superior Court
Clerk, Rhett Walker and the assistant Clerk, Tammy Graham. Mistakenly
believing that they could have the bench warrant lifted or disposed of, he
vigorously and angrily urged them to do so. He was neither courteous nor tactful.
He followed up with two (2) Facebook postings on April 29, 2013. In one he
suggested that if Walker did not take care of the matter, Appellant would see that
he lost his job. In another, he threatened to reveal the details of a (fictitious)
matter involving Graham, which had occurred years before, and which had the
potential for causing embarrassment. Two days later, on May 1, 2013, Dodge
County District Attorney Tim Vaughn applied for, and got, from Judge Frederick
H. Mullis, Dodge County Superior Court judge, an order for a "Trap and Trace
Device" and telephone records. Appellant was arrested a few days later and was
illegally and unlawfully incarcerated2 until June 3, 2013, when he was indicted on
1
We do not know why a department of the United States government would get involved
in a matter such as this.
2
He was not charged with any offense other than the tenant/utilities offense and was given
no bond for that offense.
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two counts of Intimidation of a Court Officer-Walker and Graham- and one felony
count of Aggravated Cruelty to Animals-charging that Harrell "did knowingly and
maliciously cause death to a cat." T-122, Lines 18-25 thru T-125, Lines 1-17.
Appellant filed a Motion for Bond on the new charges on June 21, 2013,
which Motion was summarily denied. On August 27, 2013, Appellant filed an
Extraordinary Motion for Reconsideration of Bond. Finally, after five (5) months
of incarceration, on October 7, 2013, he was granted bond in the amount of
$24,000.00, which Bond Order carried three (3) sets of conditions: 1) he was
ordered not to have any contact with the alleged victims-a usual and reasonable
condition; 2) he was ordered not to have any contact or communication with his
daughters-strange because they were not involved in this case at all; and 3) he was
ordered to have no internet activity whatsoever-a blanket condition which totally
throttled Appellant's First Amendment rights. R-56.
On January 24, 2013, Vaughn filed a Motion to Revoke Bond, alleging,
inter alia, and principally, that Appellant had violated the terms of his bond by
committing the offenses of Aggravated Stalking (with regard to his daughter), DUI
and by making numerous internet postings. Appellant responded to the Motion,
denying all allegations except for making the internet postings. Appellant asked
that the Motion be denied and further asked that the Bond be modified to allow
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him to use the internet for business and financial purposes, all of which were
necessary for him to conduct his business and deal with the pressing bankruptcy
matters. R-61; R-68.
At the hearing, the evidence of Aggravated Stalking consisted of one
alleged contact with the daughter. It was pointed out to the court that case law
provides that a single incident of contacting his daughter-even if true, which was,
of course, denied-would not support a charge of Aggravated Stalking. It was also
presented that, at the time of the stop on January 13, Appellant's blood alcohol
content was 0. Nevertheless, the court revoked Appellant's bond. R-71.
Appellant remained incarcerated until the time of his trial.
Appellant filed a number of pre-trial motions alleging, inter alia, that the
indictment was unconstitutional or unconstitutional as applied, that the indictment
should be dismissed for improper joinder of Count 1 with Counts 2 and 3, that
Count 1 should be severed from Counts 2 and 3 and that the indictment was
otherwise defective for failure to include all elements of the offense and did not
adequately apprise Appellant of the charges. The pre-trial motions were heard on
June 9, 2014, Honorable C. Michael Johnson, presiding. All motions were denied.
T2.
The case was tried on June 10, 2014 through June 11, 2014, with Judge
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Johnson presiding.
With regard to Count 1 of the indictment-the charge that involved killing
the cat-the State produced one (1) witness, Sid Carter. Carter testified that on
April 15, 2013, he came home and checked the mail and, when he opened the
mailbox he found a dead cat in the mailbox. Apparently under the impression that
the dead cat in the mailbox constituted an emergency situation, Carter called 911.
Shortly thereafter, he saw Appellant drive by his house and point at his mailbox.
Carter gave no evidence that Appellant killed the cat, maliciously or otherwise.
Carter gave no evidence that Appellant caused physical pain or suffering to the
cat. Carter gave no evidence that Appellant rendered a part of the cat's body
useless or seriously disfigured the cat. In fact, under cross examination, Carter
clearly admitted that he did not know where the cat was killed, how it was killed,
or who killed it. There was no evidence regarding "ownership" of the cat. T-32,
Lines 14-25; T-33, Lines 1-22.
With regard to Count 3 of the indictment, charging Appellant with
intimidation of the Court Clerk, Rhett Walker, the State presented the testimony of
Rhett Walker. He testified that he received a phone call on his personal phone
from Appellant who informed Walker as follows: "that if I didn't have that bench
warrant lifted by such and such a time that day that he was going to tum my world
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upside down". T-48. He subsequently saw a Facebook posting giving him
instructions of what he was supposed to do. The internet posting was read to the
jury by the State. The text was as follows:
"Lister Harrell. And it says news, news, Rhett Walker has given a bench
warrant to Judge Sarah Wall and she signed it to have me locked up. Again, this is
the same, I'm not sure what all the symbols are, what they mean, the same youknow-what that I was locked up for last year. You remember where my son
watched and cried, you know, for cutting the electricity off in my house for nonpayment just like Georgia Power and EMC do every day if you don't pay your bill.
But what do Tim Vaughn, Sarah Wall, Rhett Walker, Tammy Graham, and now I
guess Lynn Sheffield do to me and my family? I have been away building the
Saraland Foundation to help people and my home county clerk is getting warrants
for me without me even being served.
Now I feel you are either with me or against me. While I am on the run do
you want them to catch me and ruin my chicken foot eating victory or with you.
Call Rhett Walker at and (sic) he posted my cell phone number. And he asked
let's hear your choice: A. Lock Lister up. B. Leave Lister and his son, Lister
Dixie Harrell, alone. I will give you everybody else's contact info tomorrow." T53, Lines 8-25; T-54, Lines 1-2.
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Walker then testified that with regard to the phone call: "But to be
threatened by turning my world upside down, I really wasn't sure how to take that.
I had to think about it and try to keep from getting a little nervous because I knew
from what he was going on that he may not have been stable mentally, and so it
concerned me." Emphasis supplied.
With regard to the Facebook posting, he testified that he was more
concerned about his deputy clerk than himself. T-54, Lines 19-24.
On cross examination, Walker testified that the phone call, and the text
message, were received when he was at a clerk's meeting in Glynn County,
Georgia. T-60, Lines 7-25; T-61, Lines 1-3.
The State then called Tammy Graham, the Dodge County Deputy Clerk, to
testify in support of Count 2 of the indictment. Graham testified that she saw the
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Facebook posting of April 29, 20
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The post~g was read into evidence by
Graham:
"Lister Harrell, breaking n
s. Tammy Graham in the Dodge County Clerk
of Court just admitted to my atto eys secretary, Cathy, that Tammy lied when she
told Judge Sarah Wall I had been erved and that Jon Levis, my attorney, had been
copied. Well, Ms. Tammy Graha , will now s1e how it feels looking at the judge
from another direction when she }s arrested this week. Tammy, if you need a
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bond, try, it's got a website." T-69, Lines 3-10. Graham was then asked: "How
did that make you feel?" T-69, Line 17. Graham responded: "It was not true. I
was embarrassed." T-69, Line 18. Graham then read the other Facebook posting
into evidence:
"Lister Harrell, more breaking news. Tammy Graham, Rhett Walker, well,
he's got Rhett Walker, our wonderful Clerk of Court's right hand funny honey told
my attorney she was going to keep me out of jail until she made the front page of
our daily, The Dodge County Informer. Well, if she doesn't do something today,
thank night about xxx number of years ago when she was with me, Billy Batts and
Butch Aides when Tammy was so drunk and so naked and so holy, she gave it up
to all three and guess who has that Kodak moment on YouTube? If the bench
warrant is still there tomorrow, I will give you all the aqdress which will be
Tammyallthree?.com." T-69, Lines23-25; T-70, Lines 1-9.
Graham was later asked about people calling her and asking her about the
Facebook posting and how she felt about it. T.. 71, Lines 8-11. Graham
responded: "Embarrassed." T-71, Line 12.
Under cross examination, Graham was asked by counsel for Appellant:
"These things that are mentioned in these postings, they are completely untrue;
right?" Graham responded: "Yes, sir." She was again questioned: "And they
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embarrassed you greatly?" Again, she responded: "Yes, sir." T-74, Lines 2-6.
The State then called Special Agent Lindsey Giddens to testify. T-75.
Agent Giddens generally testified about the Facebook pages and introduced a tape
recording in which the Appellant admitted to making the postings.
At the close of the State's evidence, Appellant made a motion or motions
for directed verdict as to all counts, arguing, inter alia, as follows: Count I-there
was no evidence at all that Appellant killed the cat; Count 2-although there was
evidence that Graham was embarrassed, there was no evidence that she was
intimidated; Count 3-the only evidence that could possibly be construed as a threat
involved a phone call and text which were received in Glynn County-with no
evidence at all from where the call and text were sent-and that, therefore, venue
had not been proven beyond a reasonable doubt. T-94, Lines 6-25; T-95 thru T98, Lines 1-24.
Appellant also moved to dismiss Count 3 on the ground that the indictment
alleges that there was "a threatening communication", the proof showed a series of
communication, and that, therefore, there was a fatal variance between the
indictment and proof at trial. T-104, Lines 1-7.
The Appellant then testified. T-110.
The Appellant testified that he did not kill a cat on April 16, 2013; he did
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not put a dead cat into a mailbox; and that he was not in Georgia on April 16,
2013. He admitted making the phone call and the Facebook postings and that he
lied about Graham, but he denied any threats or intimidation.
The evidence was closed and at that time the jury was excused and counsel
and the trial court discussed requests to charge. During the conference, counsel
for Appellant orally requested a charge on malice, informing the Judge that such
charge had not been requested in writing. T-140, Lines 13-15. Counsel for
Appellant then observed that the indictment itself charged malice, thus justifying
and even requiring the charge: "So, with that being the case, it must necessarily be
that it was caused maliciously and I do believe that the indictment charges
maliciously causes the death." T-41, Lines 3-6. The trial court agreed: "It does.
Knowingly and maliciously." T-141, Line 8. Nevertheless, the court did not give
a charge on malice.
The Judge then charged the jury and instructed them to retire to deliberate.
The jury returned with a verdict finding Appellant guilty on all counts. On Count
1 the jury found Appellant guilty of "Cruelty to Animals", which worked out to be
a misdemeanor. The court then sentenced Appellant as follows: "Count 2, the
sentence of the court will be 12 years, split sentence, 6 to serve, 6 on probation.
Count 3 will be the same sentence. It will be concurrent with Count 2. And Count
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1, the maximum, 12 months. That will also be concurrent." T-178, Lines 21-25;
T-179, Line I.
Appellant timely filed a Motion for New Trial and a Motion for Appeal
Bond. The motions were heard on September 8, 2014. See T-3.
On January 2, 2015, the Court issued its order denying Appellant's Motion
for New Trial. R-208.
Notice of Appeal was timely filed and appeal was docketed in this
Honorable Court on March 27, 2015.
II.
STATEMENT OF THE CASE
This appeal is about: 1) errors made by the trial court, including errors made
by the trial court in its rulings denying motions made by Appellant prior to trial,
including motions with constitutional issues; 2) errors by the trial court in refusing
to direct verdict or verdicts of acquittal; and 3) matters concerning sufficiency of
the evidence to convict.
III.
ENUMERATIONS OF ERROR
A. THE COURT ERRED IN REFUSING TO DISMISS COUNTS 2 AND 3 OF
THE INDICTMENT ON THE GROUND THAT O.C.G.A.§16-10-97(a)(l) IS
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UNCONSTITUTIONAL OR WAS UNCONSTITUTIONAL AS APPLIED.
B. THE COURT ERRED IN REFUSING TO DISMISS THE INDICTMENT
FOR IMPROPER JOINDER OF COUNT 1 OF THE INDICTMENT WITH
COUNTS 2 AND 3 OF THE INDICTMENT.
C. THE COURT ERRED IN DE~G APPELLANT'S MOTION TO SEVER
COUNT 1 OF THE INDICTMENT ~ROM COUNTS 2 AND 3 OF THE
INDICTMENT.
D. THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR
DIRECTED VERDICT WITH REGAfm TO COUNT I OF THE INDICTMENT
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BECAUSE THERE WAS NO EVIDENCE THAT DEFENDANT COMMITTED
THE OFFENSE.
E. THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR
DIRECTED VERDICT WITH REGk TO COUNTS 2 AND 3 OF THE
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INDICTMENT BECAUSE THERE WAS NOT SUFFICIENT EVIDENCE OF
THREAT AND INTIMIDATION.
F. THE COURT ERRED IN REFUJ ING TO DISMISS COUNT 1 OF THE
INDICTMENT ON THE GROUND THAT IT DID NOT ALLEGE EVERY
ESSENTIAL ELEMENT OF THE CRIME CHARGED, THAT BEING
AGGRAVATED CRUELTY TO ANIMALS.
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G. THE COURT ERRED IN REFUSING TO DISMISS COUNT 1 OF THE
INDICTMENT ON THE GROUND THAT IT DID NOT ADEQUATELY
APPRISE APPELLANT OF THE NATURE OF THE CHARGE AGAINST HIM.
H. THE COURT ERRED IN REFUSING TO DISMISS COUNTS 2 AND 3 OF
THE INDICTMENT ON THE GROUND THAT THEY DID NOT
ADEQUATELY APPRISE APPELLANT OF THE NATURE OF THE
CHARGES AGAINST HIM.
I. THE COURT ERRED IN REFUSING TO DISMISS COUNTS 2 AND 3 OF
THE INDICTMENT ON THE GROUND THAT SAID COUNTS FAILED TO
CHARGE THE APPELLANT WITH ANY OFFENSE COGNIZABLE UNDER
THE LAW OF THE STATE OF GEORGIA.
J. THE COURT ERRED INF AILING TO CHARGE THE JURY ON MALICE.
K. THE COURT ERRED IN FAILING TO CHARGE THE JURY ON THREAT
AND INTIMIDATION.
STATEMENT OF JURISDICTION
This Court, rather than the Court of Appeals, has jurisdiction of this case on
appeal as it involves, inter alia, the constitutionality of a law or statute, a matter
upon which jurisdiction is conferred upon the Supreme Court of Georgia by the
1983 Constitution of Georgia, Art. VI, Sec. VI, Par. II, and involves correction of
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errors of law.
IV.
STANDARD OF REVIEW
A.
The standard of review with regard to the constitutionality of the statute vis-
a-vis the First Amendment, concerns whether the statute is unconstitutional on its
face or unconstitutional as applied in this case. See Virginia v. Black, 538 US 343
(2003).
B.
The standard of review with regard to sufficiency of the evidence to convict
is whether, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 US 397 (1979).
Such standard applies whether reviewing the denial of the motion for directed
verdict of acquittal or whether determining the sufficiency of the evidence to
support a conviction. Skelton v. State, 297 Ga. 161 (2005).
C.
The standard of review for failure to charge the jury in this case is
whether the failure related to every substantial issue or issues presented by the
evidence.
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v.
ARGUMENT AND AUTHORITY
A. THE COURT ERRED IN REFUSING TO DISMISS COUNTS 2 AND 3 OF
THE INDICTMENT ON THE GROUND THAT O.C.G.A.§16-10-97(a)(l) IS
UNCONSTITUTIONAL OR WAS UNCONSTITUTIONAL AS APPLIED.
Perhaps the most serious, significant and important argument is the
constitutional argument; that is, the statute regarding intimidation of a court
officer is either unconstitutional or unconstitutional as applied.
The Appellant was charged in Counts 2 and 3 of the Indictment with
Endeavoring to Intimidate a Court Officer by threats. Count 2 charged that the
Appellant "by threatening communication, did unlawfully endeavor to intimidate
Tammy Graham, a court officer, to wit: Dodge County Deputy Clerk of Superior
Court, while in the discharge of said officers duties, by threatening to embarrass
and harass said deputy clerk if the clerk did not withdraw a warrant issued by the
Superior Court Judge contrary to the laws of said State, the good order, peace and
dignity thereof." Count 3 charged that the Appellant "by a threatening
communication, did unlawfully endeavor to intimidate Rhett Walker, a court
officer, to wit: Dodge County Clerk of Superior Court, while in the discharge of
said officers duties, by threatening to embarrass and harass said clerk if the clerk
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did not withdraw a warrant issued by Superior Court Judge contrary to the law of
said State, the good order, peace and dignity thereof." O.C.G.A.§16-10-97(a)
(Intimidation of a court officer) provides: "A person who by threat or force or by
threatening action, letter, or communication: Endeavors to intimidate or impede
any grand juror or trial juror or any officer in or of any court of this State ...... shall,
upon conviction thereof, be punished by a fine of not more than $5,000.00 or by
imprisonment for not more than 20 years, or both.") Emphasis supplied.
Counts 2 and 3 clearly implicate First Amendment principles. The United
States Supreme Court has recently agreed to consider whether violent speech
posted on the internet should be considered a "true threat" to others, in the case of
Anthony D. Elonis v. United States of America. The Elonis case no doubt will
have an important bearing on cases such as this involving First Amendment
principles; but we need not wait on that decision. The law concerning what threats
a state may constitutionally ban is already in place-those threats being known as
"true threats". See Virginia v. Black, 538 U.S. 343 (2003). There, the Supreme
Court made these remarks on "freedom of speech" prior to discussing how it
relates to "true threats": "The First Amendment, applicable to the States through
the Fourteenth Amendment, provides that 'Congress shall make no law... abridging
the freedom of speech.' The hallmark of the protection of free speech is to allow
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'free trade in ideas' - even ideas that the overwhelming majority of the people
might find distasteful or discomforting. Abrams v. United States, 250 U.S. 616,
630 (1919) (Holmes, J. dissenting); see also Texas v. Johnson, 491 U.S. 397, 414
(1989) ("If there is a bedrock principle underlying the First Amendment, it is that
the government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable"). Thus, the First Amendment
'ordinarily' denies a State 'the power to prohibit dissemination of social, economic
and political doctrine which a vast majority of its citizens believes to be false and
fraught with evil consequence.' Whitney v. California, 274 U.S. 357, 374 (1927)
(Brandeis, J., concurring)". at p. 358-359.
The Court then acknowledged that "the First Amendment also permits a
State to ban a 'true threat'". at p. 359. Importantly, the Court went on to explain
the nature of"true threats": "'True threats' encompass those statements where the
speaker means to communicate a serious expression of an intent to commit an act
v. United States, supra, at 708 ("political hyberbole (sic)" is not a true threat);
R.A.V. v. City of St. Paul, 505 U.S., at 338. The speaker need n tactually intend
to carry out the threat. Rather, a prohibition on true threats 'pro ect[s] individuals
from the fear of violence' and 'from the disruption that fear engJnders,' in
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addition to protecting people 'from possibility that the threatened violence will
occur, Ibid. Intimidation in the constitutionally proscribable sense of the word is a
type of true threat, where a speaker directs a threat to a person or group of persons
with the intent of placing the victim in fear of bodily harm or death. Emphasis
supplied.
B. THE COURT ERRED IN REFUSING TO DISMISS THE INDICTMENT FOR
IMPROPER JOINDER OF COUNT 1 OF THE INDICTMENT WITH COUNTS 2
AND 3 OF THE INDICTMENT.
Another reason that this case should be reversed is because of the improper
joinder of Count 1 with Counts 2 and 3. There is no reasonable explanation as to
why Count 1was joined with Counts 2 and 3 in the first place. There is no
reasonable explanation as to why the Court did not dismiss the indictment for
improper joinder-or otherwise sever Counts 2 and 3 from Count 1. Counsel for
the State explained to the Court that the State intended to show how the Counts
were related but that explanation seemed far-fetched from the beginning. It was.
There was never any such a showing. (See Enumeration of Error C, and argument
on severance.)
The charges are wholly, totally, absolutely unrelated. The law is quite clear
on this matter. O.C.G.A.§16-1-7 provides for joinder of offenses "when the same
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conduct of an accused may establish the commission of more than one crime ... ".
Emphasis supplied.
Obviously, the conduct referred to in Count 1 of the indictment is quite
different from the conduct mentioned in Counts 2 and 3. Case law is much the
same: "It is well settled that a defendant cannot be charged with separate and
distinct offenses on the same indictment, unless the offenses are of the same
nature, class or species, or arise out of or constitute but one transaction involving
the same conduct of the accused." Fair v. State, 129 Ga. App. 565 (1973).
C. THE COURT ERRED IN DENYING APPELLANT'S MOTION TO SEVER
COUNT 1 OF THE INDICTMENT FROM COUNTS 2 AND 3 OF THE
INDICTMENT.
The argument here is much like the argument pertaining to improper
joinder. At the new trial motion hearing we argued that the State may not indict
different kinds or different species of offenses in the same indictment. We argued
then, and we do now, that the indictment actually should have been quashed for
improper joinder but that, at the very least, the offenses should have been severed.
Again, the law is clear and settled in this respect. In Dingler v. State, 233
Ga. 462 (1995), the Georgia Supreme Court ruled that severance is mandatory
"when two or more crimes are charged in separate counts in a single indictment,
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though committed at different times and places and involving transactions with
different persons, and are of the same general nature or species, and the mode of
trial is the same".... In this case all of those factors apply except that the crimes
charged are not of the same general nature or species. In fact, it is hard to imagine
crimes being more different than cruelty to animals and intimidation of a court
officer. Nevertheless, the trial court found a way to deny severance based upon
the State's argument-an argument which was strange indeed. Here it is: "As far as
the demurrer to all counts, that's generally - - by arguing our severance motion at
the same time and in response to the severance motion I would present, and I have
a copy of this for the Court and Mr. Jarriel, Carrol v. State, 199 Ga. App. 8, which
holds that standards of severance apply when the offenses have been joined solely
because of their same or similar character. Only then shall the accused have a
right to severance of the offenses. They are not joined solely because they are of
the same character. When the similarity reaches the level of a pattern of a
common motive, plan, scheme or bent of mind. In this case you have very close in
time, about a week or two weeks apart. a witness 3 in one court action and court
officials in another court action who are intimidated or scared in one way or
3
Ifthe "witness" was Carter, we can only observe that Appellant was charged with
aggravated cruelty to animals, not intimidation of a witness.
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another to prevent them from either doing their job in the court action or testifying
against Mr. Harrell. It's the same motive. It's the same plan and scheme
essentially because they're sexual references 4 to two out of these three parties and
they're going to be exposed to some pornographic video if they don't either,
number one, in regard to Count One, not testify, or in regard to Count Two, lift the
bench warrant. So it's the same common scheme, motive, plan. I'll give the Court
a copy of this and give a copy to Mr. Jarriel. The counts are properly joined.
That's why they were joined and we would ask the Court to deny the Motion for
Severance."
Well. It appears that the trial court simply accepted the State's argument
that it would be able to show the "same motive", "plan and scheme", without
questioning the State as to how it could possibly do such a thing. And, in fact, the
State did not.
After the trial, at the hearing on Appellant's Motion for New Trial, we again
pointed out the fallacy in the argument as well as the failure to produce any
evidence of motive, plan or scheme. We pointed out to the Court that there was
only one witness for the State who testified in support of the crime of cruelty to
animals, that witness being Sid Carter. The only thing that Carter established was
4
We do not know how this could apply to a cat.
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that a dead cat was found in his mailbox. There was only circumstantial evidence
that the Appellant was involved in the placement of the dead cat. There was no
evidence that the Appellant committed the offense. Nevertheless, the Court again
accepted the State's explanation, this time with reasons that pass understanding.
In its Order, the Court found and held as follows:
"The Defendant next argued that the Intimidation of a Court Officer and the
Cruelty to Animals charge were improperly joined by the state. The Defendant
raised this issue prior to trial and was subsequently denied by this Court. The
Court of Appeals has held that, while ' [m]ere similarity in the character of the
crimes is not enough for joinder, but where the crimes are 'so strikingly similar as
to evidence a common motive, plan, scheme, or bent of pattern, then joinder may
be appropriate.' Milton v. State, 280 Ga. App. 179 at 181 (2006).
In this case, the clear evidence at trial was that all three victims of the
Defendant were threatened by use of a cell phone, all three victims were
threatened as retaliation for their participation in a court case in which the
Defendant was involved, and all threats occurred in a close proximity of time.
Additionally, all victims were threatened with blackmail involving an alleged
pornographic videos or Facebook videos involving each respective victim and the
defendant. Therefore, all three charges contained such strikingly similar evidence
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of common motives, plans, schemes, and bent of mind that the charges are
properly joined. The motion by the Defendant is thus denied." R-208. Emphasis
supplied.
We are mindful of Rule 29 of this Court. We mean no disrespect. We mean
no disparagement. However, we cannot escape the conclusion that when the trial
court is referring to three victims, the court means that a cat was one of the
victims, which cat was threatened by use of a cell phone, threatened as retaliation
and threatened with blackmail. To be fair, the court did, subsequently in the order,
suggest that the victim was not the cat but rather Sid Carter as the apparent owner
of the cat. The court said: "Finally, the Defendant takes issue with what the
Defendant perceives as a lack of evidence on the issue of the cruelty to animals
charge in count three 5 • At trial, evidence was presented that the Defendant called
the victim and left a voicemail saying the Defendant had the victim's cat, the cat
was dead, and the Defendant had placed the dead cat in the victim's mailbox on
the date of the offense." But this is still wrong. First of all, there was no evidence
whatsoever that Carter was the owner of the cat. Secondly, and more importantly,
the statute does not make the owner of an animal the victim-and it should not.
Most animal cruelty cases involve abuse or neglect by the owner who could never
5
0f course, this is a mistake. The animal cruelty charge was Count 1.
24
be charged if the owner were deemed to be the victim. It is so obvious that the
charges, at the very least, should have been severed.
D. THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR
DIRECTED VERDICT WITH REGARD TO COUNT I OF THE INDICTMENT
BECAUSE THERE WAS NO EVIDENCE THAT APPELLANT COMMITTED
THE OFFENSE.
In support of the charge in Count I of the indictment that the Appellant
committed cruelty to animals by maliciously killing a cat, the State offered the
testimony-and only the testimony-of Sid Carter. Mr. Carter was a neighbor of the
Appellant.
Carter testified that he found a dead cat in his mailbox. T-32, Lines 21-24.
He testified that shortly after finding the cat, he saw the Defendant drive by and
point toward the mailbox, T-33, Lines 20-22, and that he later received a phone
call from the Defendant referring to the cat in the mailbox. He gave the following
testimonial cross examination:
"Q.
Okay. So you don't know where this particular cat was killed?
A.
No sir.
Q.
You don't know how it was killed?
A.
No sir.
25
Q.
And you don't know who killed it, do you?
A.
No sir." T-41, Lines 14-20.
Though the Appellant was charged with aggravated cruelty to animals, he
was convicted of the lesser included offense cruelty to animal, which lesser
included offense involves causing "death or unjustifiable physical pain or
suffering to any animal by an act, omission, or wilful neglect." O.C.G.A.§16-124(b).
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.E.2d, 560, 1979,
provides the standard for determining the sufficiency of the evidence, that being
"whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of a crime beyond
a reasonable doubt." 443 U.S. at 319.
Not only was there not "sufficient" evidence to support the charge, there
was no evidence that the Appellant caused death, pain or suffering to the cat by an
act, omission, or neglect.
E. THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR
DIRECTED VERDICT WITH REGARD TO COUNTS 2 AND 3 OF THE
INDICTMENT BECAUSE THERE WAS NOT SUFFICIENT EVIDENCE OF
THREAT AND INTIMIDATION.
26
In support of the charges in Counts 2 and 3 of the indictment that Appellant
committed the offenses of intimidation of a court officer, the State offered the
testimony of the Clerk of Court, Rhett Walker, and his Deputy, Tammy Graham.
There was evidence by Walker and Graham, uncontradicted and admitted by
Appellant, that Appellant had contacted them. Yet, there was no evidence that
either one was offered any intimidating conduct. Walker was told that if he did
not have the bench warrant lifted then his world would be "upside down". T-48.
The Facebook posting about Graham-which was mean, crude and fabricated-was
meant to, and did, embarrass her. These are not matters of intimidation.
Intimidation should made of sterner stuff. And that, of course, is the law as has
been demonstrated above. Again, Jackson v. Virginia, supra, provides the
standard for sufficiency of the evidence and, here, there simply was not sufficient
evidence that the elements of threat and intimidation were proved beyond a
reasonable doubt.
F. THE COURT ERRED IN REFUSING TO DISMISS COUNT 1 OF THE
INDICTMENT ON THE GROUND THAT IT DID NOT ALLEGE EVERY
ESSENTIAL ELEMENT OF THE CRIME CHARGED, THAT BEING
AGGRAVATED CRUELTY TO ANIMALS.
Another ground concerns the fact that Count 1 charged Aggravated Cruelty
27
to Animals but did not include an essential element-that being rendering a part of
the animal's body useless or seriously disfiguring the animal. At the trial, we
argued-demurring to the indictment-that the indictment did not charge acts which
constituted aggravated cruelty to animals. The State responded-and the Court
agreed-that the code section, O.C.G.A.§16-12-4(c) prohibits both malicious killing
and physical harm, etc., because it uses the word "or". The argument is not
supportable. The sentence is: "A person commits the offense of aggravated
cruelty to animals when he or she knowingly or maliciously causes death or
physical harm to an animal by rendering a part ofsuch animal's useless or by
seriously disfiguring such animal." In order for the State's argument to hold up,
the statute would have to be re-written to state: "maliciously causes death to an
animal or physical harm to an animal", etc. Re-writing the statute may not be done
by the Court. Criminal statutes must be construed strictly against the State and in
favor of the accused, Palmer v. State, 260 Ga. 330, 331 (1990), and the Court may
not re-write a statute. Citibank (South Dakota). N.A. v. Graham, 315 Ga. App.
120, 122 (2012). Emphasis supplied.
Again, The statute defining Aggravated Cruelty to Animals, 0.C.G.A.§1612-4(c) provided6, inter alia, as follows: "A person commits the offense of
6
"Provided" because that code section has now been amended, as shown below.
28
aggravated cruelty to animals when he or she knowingly and maliciously causes
death or physical harm to an animal by rendering a part ofsuch animal's body
useless or by seriously disfiguring such animal." Emphasis supplied. That is, the
death or physical harm must be accomplished "by rendering ... ", etc.
The indictment charged, inter alia, and in pertinent part, that the Appellant
"did knowingly and maliciously cause death to cat". So, under the (former) code
section, aggravated cruelty consisted of causing an animal's death through a
process of rendering a part of the animal's body useless or serious disfigurement.
There is no other way to reasonably construe the code section. This argument,
already sound, is rendered even more so by the new, amended code section.
O.C.G.A.§ 16-12-4(d) provides: "A person commits the offense of aggravated
cruelty to animals when he or she: (1) maliciously causes the death of an animal;
(2) maliciously causes physical harm to an animal by depriving it of a member of
its body, by rendering a part ofsuch animal's body useless, or by seriously
disfiguring such animal's body or a member thereof, (3) maliciously tortures an
animal by the infliction of or subjection to severe or prolonged physical pain; ... "
Emphasis supplied.
If the new code section had been in effect at the time of this indictment, then
the indictment would not have been fatal. But the indictment was fatal because at
29
that time it failed to include an essential element of the offense and, in this regard
the law is clear: "The Sixth Amendment of the United States Constitution states
that criminal defendants shall 'be informed of the nature and cause of the
accusation against them.' It is established in Georgia that satisfaction of this
fundamental principle requires that a criminal indictment which does not recite
language from the code must allege every essential element of the crime charged."
Smith v. Hardrick, 266 Ga. 54 (1995).
The state's argument is precisely this: The old statute should be read exactly
like the new, amended one. If so, one can only wonder why the legislature went to
all the trouble. No, it may not be read the same. To do so would be to re-write the
old, and this may not be done. Cooper v. State, 180 Ga. App 37, 42 (1986) ("Such
an interpretation amounts to the re-writing of a criminal statute, which is a
legislative and not a judicial function.")
G. THE COURT ERRED IN REFUSING TO DISMISS COUNT 1 OF THE
INDICTMENT ON THE GROUND THAT IT DID NOT ADEQUATELY
APPRISE APPELLANT OF THE NATURE OF THE CHARGE AGAINST HIM.
Count 1 of the indictment charged Appellant with Aggravated Cruelty to an
Animal. The relevant code section at the time of the offense and at the time of
trial, O.C.G.A.§16-2-4 (c), provided, inter alia, as follows: "A person commits the
30
offense of aggravated cruelty to animals when he or she knowingly and
maliciously causes death or physical harm to an animal by rendering a part of
such animal's body useless or be seriously disfiguring such animal." Emphasis
supplied. However, the indictment charged, inter alia and in pertinent part, that
the Defendant "did knowingly and maliciously cause death to a cat, an animal,
contrary to the laws of said State, the good order, peace and dignity thereof'. That
is, the text of the indictment appears to charge Appellant with a misdemeanor, but
calls it a felony, i.e. Aggravated Cruelty to Animals.
H. THE COURT ERRED IN REFUSING TO DISMISS COUNTS 2 AND 3 OF
THE INDICTMENT ON THE GROUND THAT THEY DID NOT
ADEQUATELY APPRISE APPELLANT OF THE NATURE OF THE
CHARGES AGAINST HIM.
Count 2 of the indictment charged, inter alia, and in pertinent part, that the
Appellant "by threatening communication, did unlawfully endeavor to intimidate
Tammy Graham, a court officer, to-wit: Dodge County Deputy Clerk of Superior
Court, while in the discharge of said officer's duties, by threatening to embarrass
and harass said Deputy Clerk if the Clerk did not withdraw a warrant issued by the
Superior Court Judge contrary to the laws of said state, the good order, peace and
dignity thereof." Emphasis supplied.
31
Count 3 of the indictment charged, inter alia, and in pertinent part, that the
Appellant "by threatening communication, did unlawfully endeavor to intimidate
Rhett Walker, a court officer, to-wit: Dodge County Clerk of Superior Court,
while in the discharge of said officer's duties, by threatening to embarrass as
harass said Clerk if the Clerk did not withdraw a warrant issued by the Superior
Court Judge contrary to the laws of said state, the good order, peace and dignity
thereof." Emphasis supplied.
0.C.G.A§16-10-97(a)(l) provides: "A person who by threat or force or by
any threatening action, letter, or communication: Endeavors to intimidate or
impede any grand juror or trial juror or any officer in and of any court of this state
or any court of any county or municipality of this state or any officer who may be
serving at any proceeding in any such court while in the discharge of such juror's
or officer's duties;" shall be guilty of said code section.
In State v. Delaby, 298 Ga. App. 723 (2009), Delaby had demurred to an
indictment charging him with 2 counts of influencing a witness. The trial court
granted the demurrer and the State appealed. The Court of Appeals affirmed.
The Court of Appeals first noted that: "By [filing a] special demurrer[,] an
accused claims, not that the charge in an indictment...is fatally defective and
incapable of supporting a conviction (as would be asserted by a general demurrer),
32
but rather that the charge is imperfect as to form and that the accused is entitled to
more information." The Court then noted that the applicable statute provided: "It
shall be unlawful for any person knowingly to use intimidation, physical force, or
threats; to persuade another person by means of corruption or to attempt to do so;
or to engage in misleading conduct toward another person with intent
to ... [i]nfluence, delay, or prevent the testimony of any person in an official
proceeding." The Court of Appeals then held: "But the trial court also found that
'[w]here the statutory definition of an offense includes generic terms, the
indictment must state the species of acts charged; it must ascend to particulars."
The Court of Appeals finally held: "Similarly in this case, the intimidation of a
witness can come in a number of ways, none of which is alleged in the
indictment". At p. 727.
Appellant demurred specially to the indictment on the ground that the
allegations of Counts 2 and 3 were insufficient to adequately apprise him of the
nature of the charge against him and to enable him to prepare a defense; and that
the "intimidation" alleged were not set forth with sufficient clarity and specificity
to apprise Defendant of what he needs to be prepared to meet at trial.
Furthermore, the specifics of the alleged harassment and embarrassment were not
set forth at all.
33
I. THE COURT ERRED IN REFUSING TO DISMISS COUNTS 2 AND 3 OF
THE INDICTMENT ON THE GROUND THAT SAID COUNTS FAILED TO
CHARGE THE APPELLANT WITH ANY OFFENSE COGNIZABLE UNDER
THE LAW OF THE STATE OF GEORGIA.
The statute prohibits a person from endeavoring-or trying-to intimidate a
court officer "while in the discharge of such ... officer's duty". O.C.G.A.§16-1097(a)(l). The clerk's duties are no doubt many, but one of them does not include
the duty or right to withdraw a warrant. Therefore, the indictment did not set out
an offense which the Appellant, or any other person for that matter, could have
committed.
Also, the statute does not require that the person actually "intimidate" or
"impede". The statute prohibits the attempt to do so, that is, the endeavor. Since
neither the clerk nor his assistant could ever have withdrawn the warrant, the most
that they could have done was to try, or attempt, to withdraw the warrant-not that
they would have made such an attempt. Thus, the indictment charged the
Appellant to make an attempt to make an attempt which is not a crime. See
Wilson v. State, 53 Ga. 205 (1874). In the same vein, the indictment did not
charge the Appellant with "embarrassing" or "harassing", but charged him with
threatening to do so. Again, this is an attempt to attempt.
34
Each individual count of the indictment must allege every essential element
of the crime charged, or the indictment is defective. Smith v. Hardwick, 266 Ga.
54, 55 (1995). Additionally, a Defendant has a right to know enough of the
particular facts constituting the alleged offense to enable him to prepare for trial.
State v. Black, 149 Ga. App. 389, 390-391 (1979);' See also, D'Auria v. State, 270
Ga. 499, 500-01 (1999). He is entitled to be tried under an indictment that is
"perfect in form and substance." Kyler v. State, 94 Ga. App. 321, 323 (1956).
Where the statutory definition of an offense includes generic terms, the indictment
must "descend to particulars" and state the species of acts charged with such
clearness and certainty as to apprise the accused of the particular act which is the
substance of the offense. Lee v. State, 117 Ga. App. 765, 766 (1968). The
indictment did not comport with these principles and therefore violated the
Appellant's rights, and therefore should quashed.
The indictment charged the Appellant with trying to intimidate the clerk and
his assistant by threatening to embarrass and harass them but it did not state what
those threats were, how they would be of a harassing or embarrassing nature, nor
how such embarrassment or harassment would or could intimidate another person.
'
Under both the Constitution of the United States and the Constitution of the
State of Georgia, the fundamental idea in "due process of law" is that of notice.
35
Blocker v. Blackbum, 228 Ga. 285, 289 (1971). As a matter of due process, the
prosecution must inform a Defendant what was intended to have been charged and
what he must be prepared to meet. U.S. v. Holcomb, 797 Fed 2d 1320, 1326 (5th
Cir. 1986). That is, the indictment charged that the Appellant made a threatening
communication on April 29, 2013-a single act on a single day rather than multiple
acts and the State would, presumably, make its proof accordingly. But the
indictment did not state what the form of the communication was, as opposed to its
content referred to in subsection 2. The indictment did not state whether the
communication was made orally, in person, by telephone, by email or any other
method. Again, the Appellant is entitled to be informed of this through the
charging instrument, the indictment.
J. THE COURT ERRED INF AILING TO CHARGE THE JURY ON MALICE.
Counsel for Appellant requested, orally, that the court charge on malice
with regard to Count 1, animal cruelty, because it was an element of the offense,
both in the statute and charged in the indictment. The court seemed to agree but
neglected to charge on malice. Of course, malice is an element of aggravated
cruelty to animals, the felony, and Appellant was convicted of cruelty to animals, a
misdemeanor, the misdemeanor not including the element of malice. So, it may be
argued that the failure to give the charge was harmless error, but we believe
36
otherwise because there was no evidence that Appellant killed the cat in the first
place.
K. THE COURT ERRED INFAILING TO CHARGE THE JURY ON
"INTIMIDATION" AND "THREAT".
Intimidation and threat are elements of the offense of the charge of
intimidation of a court officer. In order to convict, these elements must be found
to exist beyond a reasonable doubt by the jury. Even though the charges were not
requested, the court should have given them. "The court, whether requested or
not, should give to the jury appropriate instructions on every substantial issue in
the case presented by the evidence, and a failure to do so is cause for a new trial."
Walker v. State, 122 Ga. 747 (1905); Calloway v. State, 199 Ga. App. 272, 275
(1991).
III.
CONCLUSION
This case should never have even gone to trial based upon this indictment,
an indictment flawed in so many ways. Perhaps we had, and still have, blinders,
but we were confused from the beginning. Cases that are so different in character,
facts and overall makeup simply are not supposed to be included in the same
indictment. And, we could not imagine what would make them be put in the same
37
indictment. Well, people are strange and fate can intervene to cause some very
unexpected things to happen. But there was never anything to connect these two
charges-aggravated cruelty to animals and intimidation to a court officer-with each
other.
Of course, there were other errors. The Appellant is in prison, not for
something that he did, but for what he said. Of course, speech may be abridged by
law, but when it is, the First Amendment demands that certain protections must be
attended to. Here, the speech must be examined through the prism of "true
threats". Certainly, the speech employed by the Appellant, while objectionable
and downright bad, did not amount to "true threats".
Other arguments, including sufficiency of the evidence and other matters,
we believe have been raised sufficiently, if not eloquently and with the clarity they
deserve.
For all of the reasons urged herein, and throughout this brief, we
respectfully urge this Honorable Court that the judgement of the trial court should
be REVERSED.
38
Respectfully submitted, this 15th day of April, 2015.
Isl Thomas F. Jarriel
THOMAS F. JARRIEL
Attorney for Appellant
State Bar No. 389650
POBox214
Macon, Georgia 31202-0214
(478)254-5181 Telephone
(4 78)254-5685 Fax
39
CERTIFICATE OF SERVICE
This is to certify that I have this day served a true and correct copy of the
foregoing document on:
CHRIS GORDON, ESQ.
Assistant District Attorney, Oconee Judicial Circuit
PO Box 1027
Eastman, Georgia 31023-1027
mailing a copy of same in the United States mail to the above address, with
sufficient postage affixed thereto.
This 15th day of April, 2015.
Isl Thomas F. Jarriel
THOMAS F. JARRIEL
40