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Demurrers (in brief, generally)

by merlin on September 24th, 2014
  • Sumo

Apologies for the confusion, but I have been under the misimpression for several years that demurrers were not part of Georgia jurisprudence, and were neither favored nor permitted.  At some point, a mentor may have directed me to avoid them, and I somehow incorporated it into my mental canon of legal practice.

A demurrer is defined partly in The Law Dictionary at

http://thelawdictionary.org/demurrer/ as follows:

“The formal mode of disputing the sufficiency in law of the pleading of the other side. In effect it is an allegation that, even if the facts as stated in the pleading to which objection is taken be true, yet their legal consciences are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause.”

That said, the topic has arisen again with recent investigation into the proper use of an alibi defense in a case, and I was fascinated to discover that Uniform Superior Court Rule 31.2 provides that:

“[a]ll such motions, demurrers, special pleas and notices shall be heard and considered at such time, date, and place as set by the judge. Generally, such will be heard at or after the time of arraignment and prior to the time at which such case is scheduled for trial.”

It seemed strange that this antiquated technique might be mentioned in the newest form of the rule, so further investigation failed to reveal that demurrers were no longer used, and in fact revealed that they come in two different flavors: general (a demurrer to the charges in the indictment), and special (a demurrer to the form of the indictment).  A special indictment, by the way, has to be raised at the time of Arraignment.  A general demurrer, on the other hand, can arguably be raised at any time, and is an appropriate vehicle, it appears, for delayed alibi evidence.

Specifically concerning the effect of a general demurrer (that sustaining a general demurrer quashes the indictment – exactly what the alibi I seek to prove will do), the case of Traylor v. State, 165 Ga.App. 226 (Ga. Ct. App. 1983) was directly on point:

        A. Frank Grimsley, Cordele, for appellant.

        Gary C. Christy, Dist. Atty., Cordele, for appellee.

        DEEN, Presiding Judge.

        Appellants were arrested on two charges of burglary stemming from two incidents that had occurred in Rochelle, Ga., on the same night. Footprints leading from the burglary scenes were found to correspond to footprints in the yard of a friend of appellant Gibson’s. The friend told the sheriff, and later so testified, that he had given Gibson a ride to his father’s home in the early morning following the occurrence of the burglaries. The sheriff went to the father’s house to inquire as to Gibson’s whereabouts and was greeted in the front yard by the father, who subsequently testified that he had not objected to the sheriff’s presence there. While talking with the father the sheriff saw in the unenclosed carport a pair of tennis shoes conforming to the footprints. After the father had identified them as his son’s, the sheriff removed the shoes from the premises. Appellant Traylor was implicated when a paper bearing his name was found in the abandoned truck identified as that in which two male perpetrators had been seen fleeing the scene of the second burglary. Stolen items were found in the mobile home recently rented by appellant Gibson.

        Appellants were jointly indicted and tried, and a Wilcox County jury found both guilty as charged. Both received fifteen-year sentences on each count, and both have appealed from this judgment. Appellant Gibson enumerates as error the denial of his motion to suppress the tennis shoes as evidence. Appellant Traylor enumerates as error the trial court’s denial of his motions to quash the indictment and to try himself and his co-defendant separately. Held:

        1. Appellant Gibson contends that the sheriff should have obtained either a search warrant or the consent of his father before removing the tennis shoes from the premises. The state contends that the tennis shoes were lying in the carport in plain view of anyone standing in the front yard, and that since the father made no objection either to the sheriff’s entering the yard or to his removing the shoes, his acquiescence constituted consent. The state further argues that, since appellant was in the process of moving his belongings from his father’s house to quarters of his own and had in fact slept at his father’s house no more than three nights out of the immediately preceding seven, he no longer resided there and therefore had no expectation of privacy on those premises.

        We find that the trial court did not err in denying the motion to suppress and in admitting the shoes in evidence. Contrary to appellant’s contention, the testimony of his father indicates tacit consent to the sheriff’s actions. There is no indication in the record that the sheriff’s questions or actions were coercive or that the actions of appellant’s father were involuntary. See Williams v. State, 151 Ga.App. 833, 261 S.E.2d 720 (1979). We further find that appellant could not reasonably expect privacy in an unenclosed portion of a building where he would be more accurately classified as a frequent visitor than as a resident. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The motion to suppress was properly denied.

        2. The basis for appellant Traylor’s motion to quash was two-pronged. The first prong was that his girl friend, on whose statement the sheriff had based much of his testimony before the grand jury, had lied. The second was that matters taking place before the grand jury were improperly raised at the hearing on the motion. The state contended that these assignments of error were immaterial because the motion to quash was not filed in a timely manner, OCGA § 17-7-111 (Code Ann. § 27-1501), and that even if it had been timely, the allegation of insufficiency of evidence could not be entertained by the trial court.

        A motion to quash is classified as a general rather than a special demurrer to an indictment. State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Dillard v. State, 147 Ga.App. 587, 249 S.E.2d 640 (1978); Woods v. State, 10 Ga.App. 476, 73 S.E. 608 (1911). “A general demurrer challenges the very validity of the indictment and may be raised [at] any time.” 1 State v. Eubanks, supra 239 Ga. at 485, 238 S.E.2d 38. “In contrast, a special demurrer is waived if not raised before pleading to the merits of the indictment.” Id. at 486, 238 S.E.2d 38. In the instant case, therefore, the motion to quash was not untimely.

        Even though the motion was timely, however, the court below properly denied it. It is the settled rule in Georgia that “[w]here a competent witness or witnesses were sworn and examined before the grand jury before whom the indictment was preferred, … no inquiry into the sufficiency of the evidence is indulged. The sufficiency of the evidence introduced before the grand jury is a question for determination by the grand jury and not by the court.” Summers v. State, 63 Ga.App. 445, 11 S.E.2d 409 (1940); Welch v. State, 130 Ga.App. 18, 202 S.E.2d 223 (1973). This court cannot properly consider the first prong of this enumeration, and the second is moot. The enumeration is without merit.

        3. Appellant Traylor’s enumeration regarding the trial court’s denial of his motion to sever is likewise without merit. Separate trials for co-indictees is a matter within the court’s discretion, and the decision will not be overturned unless there is abuse of discretion. Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973). Criteria for assisting the court in considering motions to sever are set forth in Cain v. State, 235 Ga. 128 at 129, 218 S.E.2d 856 (1975): “1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights?” Culpepper v. State, 156 Ga.App. 331, 274 S.E.2d 616 (1980). The court affirmatively stated that it had considered these criteria and had found that none of them would preclude denial of the motion to sever. Moreover, there was no showing that prejudice amounting to denial of due process would ensue to appellant Traylor from the court’s denial of the motion. The burden is on the appellant to show the likelihood of such prejudice. Cain v. State, supra 235 Ga. at 129, 218 S.E.2d 856. Absent such showing, we find that the court below did not err. Murphy v. State, 246 Ga. 626, 629, 273 S.E.2d 2 (1980); Carroll v. State, 147 Ga.App. 332, 248 S.E.2d 702 (1978).

        Judgment affirmed.

        BANKE and CARLEY, JJ., concur.

—————

1 The court notes that a contrary result was reached in Bramblett v. State, 139 Ga.App. 745, 229 S.E.2d 484 (1976), which is not expressly overruled by Eubanks or Dillard.

 

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