BUDHANI v. the STATE.

SECOND DIVISION
MILLER, P. J.,
ANDREWS, and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 7, 2018
In the Court of Appeals of Georgia
A18A0645. BUDHANI v. THE STATE.
MILLER, Presiding Judge.
Mahemood Budhani was convicted of three counts of unlawful sale of a
schedule 1 controlled substance, known as XLR11, in violation of OCGA § 16-13-30
(b) (2014) for sales occurring on three separate dates, and one count of unlawful
possession with intent to distribute of the Schedule 1 controlled substance XLR11 in
violation of OCGA § 16-13-30 (b) (2014). Budhani appeals, alleging that (1) the
indictment against him was void for failure to allege essential elements of the crimes;
(2) the trial court erred in denying his motion to dismiss a juror for cause; and (3) the
trial court erred in admitting his custodial statement upon finding that it was
voluntarily given. For the following reasons, we affirm.
Viewed in the light most favorable to the verdict,1 the evidence shows that
between October and December 2014, police used a confidential informant to conduct
three controlled buys of XLR11, a synthetic form of marijuana, from Budhani. In
December, police executed a search warrant for the gas station where Budhani
worked and where the sales took place, and they located additional packages of
synthetic marijuana. Defendant admits all of the packages obtained during the
controlled buys and the search contain XLR11. Each of the packages has a label that
reads that the contents are “not for human consumption.”
After his arrest, Budhani was taken to the police station where he was given a
Miranda2 warning and questioned by police. The interrogation was recorded. Officers
indicated that Budhani made no incriminating statements prior to the interrogation
being taped. During the interrogation, Budhani signed a waiver indicating that he had
not been promised anything in exchange for talking to the police. Officers asked
Budhani about how long he had been selling synthetic marijuana, and he initially
indicated that it had only been two to three weeks. Officers pressed Budhani that he
was not being truthful, stating “You want to help yourself, I’m giving you an
1
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 5660) (1979).
2
Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LEd2d 694) (1966).
2
opportunity to . . . “ They further told Budhani that even if he confessed to selling
drugs for a longer time, they would not charge Budhani with additional crimes.
Officers clearly advised Budhani that they could not make him any promises, or give
him a hint that he would not be in trouble or would be in less trouble if he was
truthful, because that determination was up to the district attorney. The officers did
state that, if Budhani was truthful with them, they would communicate that fact to the
district attorney. Ultimately, Budhani stated that he had been selling drugs for no
longer than two months.
Budhani moved to suppress the custodial statement on the grounds that it was
involuntary because he had been told by police that if he cooperated he could benefit
from a reduction of charges, elimination of charges, or a reduced sentence. The trial
court denied the motion to suppress after finding that the custodial statement was
voluntary because it was given without the hope of benefit.
Following a jury trial, Budhani was convicted of all four charges, and he now
appeals.
1. Budhani alleges that his indictment was void for failure to allege a material
element of the crimes. We disagree.
3
Budhani filed a general demurrer in this case, which the trial court denied. “A
general demurrer challenges the validity of an indictment by asserting that the
substance of the indictment is legally insufficient to charge any crime.” (Citation and
footnote omitted.) State v. Wilson, 318 Ga. App. 88, 91 (1) (732 SE2d 330) (2012).
“[T]his Court reviews a trial court’s ruling on a general or special demurrer de novo
in order to determine whether the allegations in the indictment are legally sufficient.”
(Citation, punctuation, and footnote omitted.) Smith v. State, 340 Ga. App. 457, 459
(797 SE2d 679) (2017).
[A]n indictment is void to the extent that it fails to allege all the essential
elements of the crime or crimes charged. That principle is founded upon
the constitutional guaranty of due process. Due process of law requires
that the indictment on which a defendant is convicted contain all the
essential elements of the crime . . . Unless every essential element of a
crime is stated in an indictment, it is impossible to ensure that the grand
jury found probable cause to indict. An indictment that alleges the
accused violated a certain statute, without more, would simply state a
legal conclusion regarding guilt, and not an allegation of facts from
which the grand jury determined probable cause of guilt was shown.
Likewise, it would not allege sufficient facts from which a trial jury
could determine guilt if those facts are shown at trial. A valid indictment
uses the language of the statute, including the essential elements of the
offense, and is sufficiently definite to advise the accused of what he
must be prepared to confront. In sum, to withstand a general demurrer,
4
an indictment must: (1) recite the language of the statute that sets out all
the elements of the offense charged, or (2) allege the facts necessary to
establish violation of a criminal statute. If either of these requisites is
met, then the accused cannot admit the allegations of the indictment and
yet be not guilty of the crime charged.
(Citations and punctuation omitted.) Jackson v. State, 301 Ga. 137, 139-141 (1) (800
SE2d 356) (2017).
Here, Count 1 of the indictment charged Budhani with:
. . . SALE OF A SCHEDULE I CONTROLLED SUBSTANCE for that
the said accused on the 18th day of October, 2014, said date being
material, in Newton County, Georgia, then and there: did unlawfully
sell. . . (XLR11), a Schedule I Controlled Substanc (sic), in violation of
OCGA § 16-13-30 (b) . . .
Counts 2 and 3 of the indictment are identical except that they contain different dates
of sale.3
Count 4 charged Budhani with:
. . . POSSESSION OF A SCHEDULE I CONTROLLED SUBSTANCE
WITH INTENT TO DISTRIBUTE for that the said accused on the 12th
day of December, 2014, in Newton County, Georgia, then and there: did
unlawfully possess with intent to distribute. . . (XLR11), a schedule I
3
Specifically, October 24, 2014 and December 12, 2014.
5
controlled substance, in violation of OCGA § 16-13-30 (b), said act
being separate and distinct from any other Count of this Indictment. . .
Budhani contends that the indictment is void because it fails to allege the
inapplicability of certain exemptions. OCGA § 16-13-30 (b) (2014) provides:
Except as authorized by this article, it is unlawful for any person to
manufacture, deliver, distribute, dispense, administer, sell, or possess
with intent to distribute any controlled substance.
(emphasis supplied.)
A schedule I controlled substance, as is relevant to this appeal, is defined as
...
(12) Any of the following compounds, derivatives, their salts, isomers,
or salts of isomers, halogen analogues, or homologues, unless
specifically utilized as part of the manufacturing process by a
commercial industry of a substance or material not intended for human
ingestion or consumption, as a prescription administered under medical
supervision, or research at a recognized institution . . .
...
(N) . . . (XLR11);
(Emphasis supplied.) OCGA § 16-13-25 (12) (N) (2014).
6
As an initial matter, we find that establishing that the XLR11 sold and
possessed by Budhani meets the statutory definition of a “schedule I controlled
substance” is an element of the offenses with which Budhani has been charged.4 The
indictment against Budhani did not explicitly allege that the XLR11 here was not
“specifically utilized as part of the manufacturing process by a commercial industry
of a substance or material not intended for human ingestion or consumption, as a
prescription administered under medical supervision, or research at a recognized
institution.” See OCGA § 16-13-25 (12) (N) (2014). The question before this Court
is whether this omission of the above mentioned language is fatal to the indictment.
We find that it is not because the indictment “recite[s] a sufficient portion of the
statute to set out all the elements of the offense for which [Budhani] was tried and
convicted.” See Jackson, supra, 301 Ga. at 142 (2).
4
The State contends that these exemptions are affirmative defenses for which
the defendant bears the burden of proof, but we are not persuaded. Not only does the
statute fail to identify them as affirmative defenses, but the exemptions also do not
go to the element of intent. See e.g. Hicks v. State, 287 Ga. 260, 261-262 (2) (695
SE2d 195) (2010) (“With a legal affirmative defense, the accused admits the elements
of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent;
all elements of the parts of the crime are admitted with the exception of the intent”);
see also OCGA §§ 16-3-1 – 16-3-40.
7
Specifically, the indictment alleges that Budhani both possessed and sold “a
schedule I controlled substance.” The statutory definition of a schedule I controlled
substance in 2014 excluded XLR11 that was “specifically utilized as part of the
manufacturing process by a commercial industry of a substance or material not
intended for human ingestion or consumption, as a prescription administered under
medical supervision, or research at a recognized institution.” OCGA § 16-13-25 (12)
(N) (2014). Thus, in order for the XLR11 to even qualify as a “schedule I controlled
substance,” the exemptions could not have applied. In other words, the very definition
of a “schedule I controlled substance” embodies an allegation that the exceptions
were inapplicable. Consequently, although the indictment does not explicitly allege
the inapplicability of the exemptions, it inherently does so by alleging that the
substance possessed and sold by Budhani was, in fact, by definition, a “schedule I
controlled substance.”
Our reasoning here comports with the Supreme Court of Georgia’s recent
analysis in Jackson. The indictment here put Budhani on notice of the “factual
allegations he must defend in court.” See Jackson, supra, 301 Ga. at 140 (1). The
indictment put Budhani on notice of the specific dates involved, his actions that
constituted an alleged violation of OCGA § 16-13-30 (b) (2014), and that the State
8
alleged that the XLR11 he sold and possessed was a “schedule I controlled
substance” as that term is defined by statute. Consequently, the due process concerns
present in Jackson do not exist here and Budhani’s indictment is not void.5
2. Budhani next argues that the trial court abused its discretion in denying his
motion to strike a prospective juror for cause after the juror indicated that he was
biased and the trial court was unable to rehabilitate him. We find no manifest abuse
of discretion.
The trial court’s denial of a motion to strike a juror for cause will not be set
aside unless there has been a manifest abuse of the trial court’s discretion. Abdullah
v. State, 284 Ga. 399, 400 (2) (667 SE2d 584) (2008).
A defendant “is entitled to a full panel of qualified jurors.” Kirkland v. State,
274 Ga. 778, 779 (2) (560 SE2d 6) (2002). Thus, jurors in a felony trial must answer
certain questions, including whether they possess any bias or prejudice either in favor
of or against the defendant. See OCGA § 15-12-164 (a). If a juror’s answer to this
5
In reaching its conclusion that the indictment was not void, the trial court
relied on its interpretation of the meaning of the exemptions based on the punctuation
used in the statute. The issue before us is not whether the evidence presented at trial
was sufficient to establish that any of the exemptions applied, rather, the issue is
whether the exemptions needed to be explicitly contained within the indictment for
it to be valid.
9
question renders that juror incompetent, then “[that juror] shall be set aside for
cause.” OCGA § 15-12-164 (c).
For a juror to be excused for cause, it must be shown that he or she holds
an opinion of the guilt or innocence of the defendant that is so fixed and
definite that the juror will be unable to set the opinion aside and decide
the case based upon the evidence and the court’s charge upon the
evidence. A prospective juror’s doubt as to his or her own impartiality
does not demand as a matter of law that he or she be excused for cause.
A conclusion on an issue of juror bias is based on findings of demeanor
and credibility which are peculiarly in the trial court’s province, and
those findings are to be given deference.
(Citations omitted.) Hyde v. State, 275 Ga. 693, 695 (4) (572 SE2d 562) (2002); see
also Brown v. State, 243 Ga. App. 632, 633 (1) (534 SE2d 98) (2000) (same).
Here, during voir dire, one prospective juror indicated that he would be unable
to serve as a juror because he had to attend his college classes the following week.
After the trial court explained that this obligation would not impede his ability to
serve because the trial would be completed by then, the prospective juror then
indicated that his upbringing had caused him to be biased against some people on the
basis of race. The trial court and the prospective juror then engaged in a dialogue
about whether he could put forth his “best reasonable efforts” to be fair and impartial.
10
The prospective juror responded, “Yeah, I guess.” The prospective juror continued
to express reservations about his bias, though he never indicated that he had formed
an opinion as to Budhani’s guilt as a result of his race or that he definitely could not
be fair and impartial in the case. After further questions, the trial court and the
prospective juror engaged in this exchange:
Court: Well, you won’t know until you see the evidence. But the
question is whether or not you keep your mind open to listen and wait
until the evidence is presented. That’s the question. You’re not – you’re
not drawing a conclusion about Mr. Budhani simply because of his
ethnicity. That’s the point. You’re not drawing a closed mind because
of who you see he is. That’s the question. Is that correct that you will
listen? That’s all we’re asking whether you will or won’t.
Prospective Juror: Yeah.
Defense counsel moved to strike this prospective juror for cause, but the trial
court denied the motion, finding that the prospective juror simply did not want to
serve on the jury and was giving answers that would enable him to evade service. The
trial court noted that the prospective juror smirked and smiled when answering
questions. Defense counsel agreed that the prospective juror did not want to serve on
11
the jury and stated that the prejudice claim was likely made up. Defense counsel then
used a peremptory strike to remove the prospective juror.6
Importantly, at no time did the prospective juror indicate that he had formed
an opinion on Budhani’s guilt or innocence “that was so fixed and definite that [he]
would be unable to set the opinion aside and decide the case based upon the
evidence.” See Ros v. State, 279 Ga. 604, 606 (4) (619 SE2d 644) (2005). Further,
“[n]either a prospective juror’s doubts as to his ability to be impartial nor his
statement that he will ‘try’ to set aside any preconceived notions mandate as a matter
of law that the juror be excused for cause.” (Citation omitted.) Favors v. State, 326
Ga. App. 373, 377 (3) (756 SE2d 612) (2014).
Moreover, the trial court made a credibility determination that the prospective
juror’s answers and demeanor showed that he was simply trying to avoid service
rather than expressing a sincerely held bias – a conclusion with which defense
counsel expressly agreed. Because the trial court is in the best position to evaluate the
prospective juror’s demeanor and credibility, and this Court should defer to the trial
6
There is no harmless error test applicable to the failure to strike a prospective
juror for cause; thus, the fact that the defendant did not use all of his peremptory
strikes is irrelevant to the analysis. See Harris v. State, 255 Ga. 464 (2) (339 SE2d
712) (1986).
12
court’s findings, we cannot say that the trial court manifestly abused its discretion in
this case. See Hyde, supra, 275 Ga. at 695 (4); Brown, supra, 243 Ga. App. at 633
(1).7
We certainly caution trial courts about being overzealous in attempts to
rehabilitate jurors given the constitutional implications at stake. Here, given the
prospective juror’s claims of racial bias - whether sincere or fabricated - the better
practice likely would have been to strike this prospective juror for cause. Nonetheless,
we cannot say that the trial court manifestly abused its discretion such that it
committed reversible error.
3. Lastly, Budhani contends that the trial court erred in finding that his
custodial statement was voluntary and, thus, admissible. We disagree.
Under Georgia law, “[t]o make a confession admissible, it shall have been
made voluntarily, without being induced by another by the slightest hope of benefit
or remotest fear of injury.” OCGA § 24-8-824. The term “slightest hope of benefit”
7
This case is distinguishable from Menefee v. State, 270 Ga. 540, 541-542 (2)
(512 SE2d 275) (1999) and Ivey v. State, 258 Ga. App. 587, 589-591 (2) (574 SE2d
663) (2002). In those cases, the trial court made no credibility determination based
on the prospective juror’s answers and demeanor that the claimed bias was simply an
insincere attempt to avoid jury service.
13
refers to “promises related to reduced criminal punishment – a shorter sentence, lesser
charges, or no charges at all.” (Citation omitted.) State v. Chulpayev, 296 Ga. 764,
771 (2) (770 SE2d 808) (2015). This rule applies to any incriminating statements and
is not limited to “confessions.” Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d
863) (2008).
“It is the task of the trial court to determine whether a confession was
voluntary, taking into account the totality of the circumstances. We will not disturb
the trial court’s factual and credibility determinations on appeal unless they are
clearly erroneous.” (Citation omitted.) Jackson v. State, 280 Ga. App. 716, 720 (2)
(634 SE2d 846) (2006). “Further, in reviewing the denial of a motion to suppress, we
consider all the evidence of record, including evidence introduced at trial.” (Citation
and footnote omitted.) McDevitt v. State, 286 Ga. App. 120 (648 SE2d 481) (2007).
We have held that “[m]erely telling a defendant that his or her cooperation will
be made known to the prosecution does not constitute the ‘hope of benefit’ sufficient
to render a statement inadmissible.” (Citations omitted.) Leigh v. State, 223 Ga. App.
726, 727 (1) (478 SE2d 905) (1996); see also Caldwell v. State, 249 Ga. App. 885,
888 (3) (49 SE2d 449) (2001) (urging defendant to tell the truth does not make
statement involuntary); Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132)
14
(1996) (detective telling defendant that he would let the district attorney know about
cooperation and that it might result in reduced sentence when defendant signed a
declaration that his statement was made without promise of hope or reward does not
make statement involuntary).
Here, during the audio recorded portion of the custodial statement, Budhani
was given a Miranda warning, executed a waiver of rights, and proceeded to discuss
with officers his sale of synthetic marijuana. At no point during the audio recorded
portion did the officers promise Budhani that the charges would be dropped or that
his sentence would be reduced if he talked to them. Rather, they simply told him that
they would not charge him with additional crimes if he were to admit to selling drugs
for a longer period of time than he initially indicated. Indeed, they told him multiple
times that they were unable to promise him anything regarding the outcome of his
case, stating only that they could talk to the district attorney about what Budhani told
them and the district attorney would have authority to decide how to handle
Budhani’s case.
During the motion to suppress hearing, Budhani’s testimony varied as to what
promises the police allegedly made. At various points he testified that he was told that
if he was truthful there would be no charges , or no sentence , or a lesser sentence.
15
However, Budhani also admitted on cross-examination that he was never promised
that there would be no charges against him and that he was only told that the officers
would tell the district attorney that he cooperated. Moreover, Budhani signed a waiver
agreeing that no promises were made and that his statement was voluntary.
On appeal, Budhani relies heavily on an answer provided by one of the
interrogating officers during the suppression hearing to establish that he was
promised a benefit prior to the recorded portion of the interrogation. When the officer
was asked whether he explained to Budhani that he did not have to speak to officers,
but that doing so could potentially benefit him in the case, the officer responded
affirmatively. During questioning at the trial, however, the officer indicated that he
had misunderstood the question being asked at the suppression hearing. He indicated
that he thought he was being asked whether cooperating could have benefitted
Budhani, not whether he told Budhani it would benefit him. He reiterated that he did
not tell Budhani that cooperating could benefit him because any benefit would be
determined by the district attorney.
Here, the trial court’s decision to admit the custodial statement as voluntary
was not clearly erroneous. The only evidence that Budhani was promised any hope
of benefit was Budhani’s own conflicting statements, which were belied by the audio
16
recording of the interrogation and the waiver of rights Budhani executed. To the
extent the officer seemed to initially indicate that promises were made prior to the
audio recording, he clarified his testimony at trial. See Gray v. State, 207 Ga. App.
648, 650 (2) (428 SE2d 663) (1993) (“we may consider all relevant evidence of
record, wherever located, including evidence introduced at a suppression hearing and
that introduced at trial”) (citation omitted). On these facts, the trial court did not
clearly err in its factual findings and credibility determinations in ruling that the
custodial statement was voluntarily given and, thus, admissible.
Judgment affirmed. Andrews and Self, JJ., concur.
17