Burns v. State

In the Supreme Court of Georgia
Decided: March 8, 2022
S21A0905. BURNS v. THE STATE.
COLVIN, Justice.
In September 2018, a Fulton County grand jury returned an
indictment charging James Burns, a police officer with the Atlanta
Police Department, with crimes connected to a June 2016 on-duty
shooting. Burns filed a “Plea in Abatement/Motion to Quash
Indictment” arguing that the State failed to provide him his
substantive rights under former OCGA §§ 17-7-52 and 45-11-4. The
trial court denied the motion. We granted Burns’s application for
an interlocutory appeal to review whether the 2016 amendments to
OCGA §§ 17-7-52 and 45-11-4 applied when an indictment was
sought after the effective date of the amendments with respect to
crimes allegedly committed prior to the effective date. While we
disagree with the trial court’s reasoning in denying Burns’s motion,
we agree that the 2016 amendments at issue apply to Burns’s
prosecution, so we affirm the judgment of the trial court.
1. Prior to July 1, 2016, OCGA §§ 17-7-52 and 45-11-4
provided public officials with certain special rights regarding grand
jury proceedings. Former OCGA § 17-7-52 (a) provided that, before
an indictment charging a peace officer with a crime could be
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.” OCGA § 17-7-52 (a) (2001).
In turn, former OCGA § 45-11-4 (f) required that a copy of the
indictment be served on the accused officer at least 15 days before
presentment to the grand jury. See OCGA § 45-11-4 (f) (2014). This
former Code section further provided, in relevant part:
(g) 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 shall not have the
right individually or through his or her counsel to
examine the state’s witnesses. The accused and his or her
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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, after which the accused and his or her counsel
shall retire instanter from the grand jury room to permit
the grand jury to deliberate upon the indictment.
(h) At any time during the presentation of evidence or
during deliberations, the grand jury may amend the
indictment or instruct the district attorney to cause a new
indictment to be drawn as in any other case. In such case,
a copy of the amendment or new indictment, if it relates
to the accused public official, shall be provided to the
accused public official and his or her counsel.
Former OCGA § 45-11-4 (g), (h).
The General Assembly amended these statutes effective July
1, 2016. See 2016 Ga. L. pp. 190-193. The legislature removed
subsections (f), (g), and (h) of OCGA § 45-11-4 and substantially
amended OCGA § 17-7-52. Relevant here, the 2016 amendment to
OCGA § 17-7-52 requires that a copy of the indictment be served on
the accused officer at least 20 days before presentment to the grand
jury. See OCGA § 17-7-52 (a). The officer must be given notice
“[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.” Id. §
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17-7-52 (a) (3). If the officer chooses to testify, “[t]he prosecuting
attorney shall, after consulting with the grand jury, inform the
officer in writing of the date and time when he or she shall be
present in order to testify and of the procedure that the grand jury
will follow.” Id. § 17-7-52 (b). The officer “will be permitted to
[testify] at the conclusion of the presentation of the state’s case-in-
chief” and will also be further notified “that he or she may be
questioned by the prosecuting attorney or members of the grand jury
as are any other witnesses.” Id. § 17-7-52 (a) (4).
If the officer requests to testify as a witness before the grand
jury, “he or she shall only be present in the grand jury room while
he or she is testifying. Such officer may be questioned by the
prosecuting attorney or members of the grand jury as are any other
witnesses.” Id. § 17-7-52 (d). Prior to testifying, the prosecuting
attorney is required to advise the officer that: (1) his or her
“appearance before the grand jury is voluntary, and he or she cannot
be compelled to appear as a witness”; (2) by agreeing to testify “he
or she will be asked to testify and answer questions and may be
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asked to produce records, documents, or other physical evidence”; (3)
the officer can refuse to answer questions or produce documents or
evidence if doing so “would tend to incriminate the officer or would
tend to bring infamy, disgrace, or public contempt upon the officer”;
(4) “[a]ny testimony given by the officer may be used against him or
her by the grand jury or in a subsequent legal proceeding”; and (5)
the officer’s attorney “shall have the right to be present in the grand
jury room” during the officer’s testimony. Id. § 17-7-52 (d) (1) – (5).
The officer may make a sworn statement before being asked any
questions, but “[t]he officer’s attorney shall not propound questions
to the officer nor object to questions propounded to the officer on
evidentiary grounds.” Id. § 17-7-52 (e). Finally, “[a]t the conclusion
of the officer’s testimony, if any, the prosecuting attorney may
present rebuttal evidence and advise the grand jury on matters of
law.” Id. § 17-7-52 (f).
2. By way of background, Burns was on duty as a police
officer on June 22, 2016, when he allegedly shot and killed Deravis
Rogers in Fulton County. On August 5, 2016, the District Attorney
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provided Burns notice under former OCGA §§ 17-7-52 and 45-11-4
of the D.A.’s intent to present evidence to a grand jury of offenses
arising out of the June 2016 shooting incident. The notice included
the date and time of the grand jury hearing, as well as a copy of the
proposed indictment charging him with felony murder predicated on
aggravated assault, aggravated assault, false statements, and two
counts of violation of oath by public officer. Burns exercised his
rights to be present with counsel during the grand jury presentation,
and to give sworn testimony not subject to cross-examination. On
August 31, 2016, the grand jury returned a true bill of indictment
against Burns on all proposed charges.
In July 2018, on the State’s motion, the trial court entered an
order of nolle prosequi on the initial indictment. The State then
sought to re-indict Burns. On August 15, 2018, the District Attorney
provided Burns with a copy of the new indictment and notice of the
D.A.’s intent to proceed with a grand jury hearing on September 5,
2018, pursuant to the 2016 versions of OCGA §§ 17-7-52 and 45-11-
4. Burns filed an “Emergency Petition for a Writ of Mandamus”
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against the Fulton County District Attorney, requesting that the
superior court prevent the D.A. from proceeding to the grand jury
without complying with the D.A.’s statutory responsibilities under
the former versions of OCGA §§ 17-7-52 and 45-11-4. After a
hearing, the superior court denied the mandamus petition. Burns
then did not request to testify before the grand jury.
On September 5, 2018, the grand jury returned a true bill of
indictment charging Burns with felony murder, aggravated assault,
and two counts of violation of oath by public officer. Burns
subsequently filed a “Plea in Abatement/Motion to Quash
Indictment,” arguing that, because the shooting incident occurred
before the July 1, 2016 effective date of the amendments to OCGA
§§ 17-7-52 and 45-11-4, the State was required to follow the prior
version of the statutes. In particular, Burns asserted that he had a
right to be present during the presentation of the evidence to the
grand jury and to make a statement without being subjected to
cross-examination. He further alleged that the District Attorney’s
application of the 2016 amendments to Burns’s 2018 grand jury
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proceedings retroactively violated his substantive rights under
former OCGA §§ 17-7-52 and 45-11-4, the Ex Post Facto provisions
of the United States and Georgia Constitutions, and Georgia case
law. After a hearing, the trial court denied Burns’s motion on
December 15. The trial court concluded that, although the statutes
at issue included substantive rights, they were public rights that did
not vest pursuant to Deal v. Coleman, 294 Ga. 170 (751 SE2d 337)
(2013), and therefore could be applied retroactively. This Court
granted Burns’s application for an interlocutory appeal.
3. Burns argues that the trial court erred by failing to
properly analyze the issue of retroactivity pursuant to Deal.
Specifically, Burns argues that former OCGA §§ 17-7-52 and 45-11-
4 created substantive, private rights, rather than substantive,
public rights, as found by the trial court. Further, Burns argues that
applying the 2016 amendments to the grand jury proceedings for a
criminal offense that is alleged to have occurred prior to the
amendments’ effective date violates the constitutional prohibition
against retroactive laws. See Ga. Const. of 1983, Art. I, Sec. I, Par.
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X. We disagree with both Burns and the trial court that former
OCGA §§ 17-7-52 and 45-11-4 created substantive rights; however,
because the trial court reached the right result, we affirm the court’s
judgment. See Merchant Law Firm, P.C. v. Emerson, 301 Ga. 609,
614 (800 SE2d 557) (2017) (affirming a trial court’s judgment as
“right for any reason”).
As an initial matter, we note that the framing of this case as
one about the retroactive application of the 2016 amendments is
largely misguided. In its order, the trial court assumed that the
statutes at issue provided substantive rights for peace officers and
then delved into an analysis regarding whether the rights were
public or private under Deal. However, this assumption was
incorrect, as the crux of this case is whether the statutes at issue
provide substantive rights or whether they govern only procedure of
the courts.
Consistent with our precedent distinguishing between
substantive and procedural laws, we conclude that the trial court
erred when it assumed that the statutes at issue are substantive
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rather than procedural in nature. As this Court has explained, a
“[p]rocedural law is that law which prescribes the methods of
enforcement of rights, duties, and obligations.” Polito v. Holland,
258 Ga. 54, 55 (2) (365 SE2d 273) (1988). This Court has previously
determined that various statutes that govern how the courts operate
are procedural in nature. See, e.g., Harvey v. Merchan, 311 Ga. 811,
824 (4) (a) (860 SE2d 561) (2021) (statute of limitation was
procedural rule); New Cingular Wireless PCS, LLC v. Dept. of
Revenue, 308 Ga. 729, 732-735 (843 SE2d 431) (2020)
(representational standing granted by a statute is procedural);
Willis v. State, 304 Ga. 122, 129 (816 SE2d 656) (2018) (statute
establishing appellate review was procedural, not substantive);
State v. Lucious, 271 Ga. 361, 365 (518 SE2d 677) (1999) (explaining
that a criminal discovery statute concerned “[a] defendant’s right to
discover scientific reports[, which] is a procedural right”).
The 2016 statutory amendments at issue here are not
substantive in nature as they “create[] no new obligations and
grant[] no substantive rights that did not exist before.” New
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Cingular, 308 Ga. at 735. Instead, the 2016 amendments merely
changed the procedures for providing notice of a grand jury hearing
to an accused police officer and the procedures under which an
accused officer may be present during and provide evidence by
sworn testimony at that hearing. While these may be important and
valuable rights, they are procedural, not substantive, in nature.
See, e.g., Mason v. Home Depot U.S.A., Inc., 283 Ga. 271 (4) (658
SE2d 603) (2008) (amended Evidence Code section governing the
admissibility of expert witnesses testimony was procedural in
nature); Henderson v. Dept. of Transp., 267 Ga. 90 (475 SE2d 614)
(1996) (holding that the notice and service provisions of the Tort
Claims Act were procedural laws); Polito, 258 Ga. at 55 (explaining
that the rules of evidence are procedural in nature). Because the
2016 amendments to OCGA §§ 17-7-52 and 45-11-4 are procedural,
and because the amended statutes were in effect at the time of
Burns’s grand jury proceeding, 1 they governed that proceeding.
1 In this case, there were no indictments or grand jury proceedings
regarding Burns while the former versions of OCGA §§ 17-7-52 and 45-11-4
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Consequently, our analysis can end here.2
This conclusion is consistent with the precedent from this
Court. As we have previously explained, “to apply a procedural
statute retroactively generally does not mean that it applies with
respect to prior filings, proceedings, and occurrences, but rather that
the procedural change affects future court filings, proceedings, and
judgments that arise from prior occurrences.” Murphy v. Murphy,
295 Ga. 376, 378 (761 SE2d 53) (2014). See also Landgraf v. USI
Film Products, 511 U.S. 244, 291 (114 SCt 1522, 128 LE2d 229)
(1994) (Scalia, J., concurring) (“The critical issue . . . is the relevant
activity that the rule regulates. Absent clear statement otherwise,
only such relevant activity which occurs after the effective date of
the statute is covered. Most statutes are meant to regulate primary
conduct, and hence will not be applied in trials involving conduct
were in effect. All relevant indictments and grand jury proceedings occurred
after the statutory amendments took effect on July 1, 2016.
2 Relying on Deal, Burns argues that the trial court erred by concluding
that these Code sections provide public and not private rights. However, that
distinction is relevant only when a law is substantive, not procedural. See
Deal, 294 Ga. at175-181 (2) (a) (explaining that the distinction between
“public” and “private” rights matters only for substantive laws).
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that occurred before their effective date. But other statutes have a
different purpose and therefore a different relevant retroactivity
event. A new rule of evidence governing expert testimony, for
example, is aimed at regulating the conduct of trial, and the event
relevant to retroactivity of the rule is introduction of the testimony.
Even though it is a procedural rule, it would unquestionably not be
applied to testimony already taken . . . .” (emphasis in original)).
Burns also argues that the trial court erred in its analysis by
relying on the Court of Appeals’ decision in State v. Peabody, 343 Ga.
App. 362 (807 SE2d 107) (2017), rather than State v. Lindsay, 255
Ga. App. 464 (566 SE2d 41) (2002). We do not think either case is
persuasive here. In Lindsay, the Court of Appeals concluded that,
“[o]n its face,” a 1990 version of OCGA § 45-11-4 afforded officers
“substantive rights” to be present, and not to be subjected to cross-
examination, during a grand jury proceeding. Lindsay, 255 Ga. App.
at 469 (1) (a) (v). In coming to this conclusion, Lindsay relied on our
decision in Dudley v. State, 273 Ga. 466 (542 SE2d 99) (2001). See
Lindsay, 255 Ga. App. at 469 nn.21 & 22 (1) (a) (v). Dudley, however,
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did not distinguish between procedural and substantive laws.
Instead, Dudley simply held that the plain language of the 1997
version of OCGA § 17-7-52 expressly extended certain protections to
former peace officers. See Dudley, 273 Ga. at 466-467. 3 Accordingly,
After the Court analyzed the plain meaning of the 1997 version of
3
OCGA § 17-7-52, we remarked in Dudley:
Moreover, determination of status as a peace officer at the time the
alleged wrongful act occurred rather than at the time of the
accusation or indictment for the purpose of entitlement to the
protections of OCGA § 17-7-52 comports with the general precept
of criminal jurisprudence that the provisions of the law existing at
the time of commission of a crime control.
Dudley, 273 Ga. at 468. This statement, however, did not purport to hold that
rights afforded by the 1997 version of OCGA § 17-7-52 were substantive in
nature. Rather, this Court was commenting, in dicta, about various public
policy rationales supporting the General Assembly’s express grant of
“enhanced protections” to current and former officers. Id. These rationales
included the fact that peace officers “should have safeguards against possible
frivolous indictments” because they “are often required to exercise discretion
in the performance of their jobs” and “perform in situations outside the realm
of the average citizen.” Id. In addition, we noted that, for two reasons, it was
sensible for the General Assembly to afford peace officers charged with
committing crimes on duty the same procedural rights, regardless of whether
they were current or former officers. First, as noted in the quoted passage
above, doing so would mean that a grand jury proceeding regarding a
particular crime would consistently apply both the procedural and substantive
law in effect at the time of the alleged crime. See id. Second, we noted that
applying the same procedural and substantive law in effect when an alleged
crime occurs “also has the salutary effect of thwarting the intentional
discharge of a peace officer prior to prosecution in order to circumvent the
statutory requirements.” Id.
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Lindsay’s holding that the statutes at issue grant substantive rights
was incorrect as it conflicts with our precedent (as discussed above)
deliniating what constitutes a substantive versus a procedural right.
Therefore, it is overruled.
Turning to Peabody, the trial court referenced the following
two statements from that decision in its order: “[s]hould the State
elect to re-indict Peabody, the provisions of the 2016 version of
OCGA § 17-7-52 would clearly apply,” 343 Ga. App. at 367, and
“[a]lthough Peabody’s alleged crimes occurred prior to the statute’s
amendments, his case was not before the grand jury until after the
amendment became effective. Therefore, the amended version
applies to our analysis,” id. at 364 n.2. These statements, while
accurate, were dicta that conducted no analysis. Moreover, these
statements could not overrule the Court of Appeals’ previous holding
in Lindsay that the statutes granted substantive rights. See White
v. State, 305 Ga. 111, 121 (823 SE2d 794) (2019) (“The older
decisions of the Court of Appeals are binding on panels of that court
until reversed or overruled by the Supreme Court or overruled by
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the Court of Appeals . . . .”). Consequently, Peabody did not apply.
Burns also argues that the trial court’s order allows an
unconstitutional ex post facto application of the 2016 amendments.
However, because the 2016 amendments are procedural in nature,
the application of these statutes to Burns’s grand jury proceedings
was not an unconstitutional ex post facto application of laws. See
Chandler v. State, 281 Ga. 712, 717 (642 SE2d 646) (2007) (“The
prohibition on ex post facto laws applies only to substantive, not
procedural, rights.”). Accordingly, this contention also fails.4
Judgment affirmed. All the Justices concur, except LaGrua, J.,
not participating.
4 In addition, Burns argues that the trial court erred when it made a
verbal ruling that the issues in his motion to quash were barred by res judicata
as they had been previously litigated and ruled upon in Burns’s petition for a
writ of mandamus. However, because the trial court did not include this verbal
ruling in its written order denying Burns’s motion to quash, we have no ruling
to review on appeal. See Mondy v. Magnolia Advanced Materials, Inc., 303 Ga.
764, 772 (815 SE2d 70) (2018) (“Moreover, until an oral pronouncement is
memorialized, the trial judge has broad discretion to amend, alter, or
completely change his decision, and any discrepancy between the oral
pronouncement and the written ruling will be resolved in favor of the written
judgment.”).
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