Sanders v. State ( 2022 )

In the Supreme Court of Georgia
Decided: February 15, 2022
S21A0983. SANDERS v. THE STATE.
BETHEL, Justice.
In this granted interlocutory appeal, Kelly Sanders challenges
the denial of her special demurrer as to the six-count second
indictment against her, arguing that it is insufficient in a number of
ways. After Sanders filed her notice of appeal from the denial of her
special demurrer, the State indicted Sanders a third time, and the
trial court entered orders of nolle prosequi as to the first and second
indictments. The State argues that because Sanders was indicted a
third time and the trial court purported to dismiss the second
indictment that is the subject of this appeal, Sanders’ appeal is moot.
We disagree that Sanders’ appeal is moot. Rather, the purported
order of nolle prosequi with respect to the second indictment was a
nullity. We further conclude that Counts 2, 4, and 5 of the second
indictment are subject to a special demurrer. However, we hold that
Counts 1, 3, and 6 are not subject to a special demurrer on the
grounds argued by Sanders in her appeal. Accordingly, we affirm in
part and reverse in part. 1
Procedural History
1. The victim in this case, Eugene Singletary, was shot and
killed on January 22, 2018. On April 18, 2018, a Gwinnett County
grand jury indicted Sanders for felony murder predicated on
conspiracy to commit possession of methamphetamine, conspiracy
to commit possession of methamphetamine, conspiracy to commit
aggravated assault, criminal solicitation, and trafficking
1 We note that the district attorney in this case initially asserted only
that we should dismiss the appeal as moot and failed to file any briefing on the
question that the Court posed in granting an appeal until after being explicitly
directed to do so and only after oral argument occurred. Failure to file a brief
addressing the merits of the case before the scheduled oral argument of the
case deprived opposing counsel and the Court of the opportunity to address the
State’s merits arguments. We admonish the district attorney to be mindful of
his duty to represent the interests of the State before the appellate courts. See
OCGA § 15-18-6 (6) (duties of district attorneys include “[t]o attend before the
appellate courts when any criminal case emanating from their respective
circuits is tried, to argue the same, and to perform any other duty therein
which the interest of the state may require.”).
2
methamphetamine or amphetamine (the “First Indictment”).2
Sanders filed a special demurrer to the First Indictment on May 10,
2018, but the trial court never held a hearing regarding that
demurrer. 3
On February 26, 2020, a Gwinnett County grand jury re-
indicted Sanders for two counts of felony murder predicated on
conspiracy to commit aggravated assault and conspiracy to commit
armed robbery (Counts 1 and 2, respectively); conspiracy to commit
aggravated assault (Count 3); conspiracy to commit armed robbery
(Count 4); criminal solicitation (Count 5); and trafficking
methamphetamine or amphetamine (Count 6) (the “Second
Indictment”). On January 12, 2021, Sanders filed a special demurrer
to the Second Indictment, 4 which the trial court summarily denied
2 The First Indictment jointly charged Sanders with Chaz Conley, but
Sanders moved to sever on May 10, 2018. The trial court granted the motion
on December 5, 2019. Conley ultimately pled guilty to voluntary manslaughter
and aggravated assault under the First Indictment. His case is not part of this
appeal.
3 Sanders also filed a motion to dismiss the First Indictment on March 9,
2020. The trial court denied the motion on March 10, 2020.
4 Sanders filed a separate special demurrer to the Second Indictment on
July 23, 2020, but that special demurrer is not at issue in this case. After a
3
on January 22, 2021. Sanders filed a request for a certificate of
immediate review on January 25, 2021, and the trial court granted
and filed both the certificate of immediate review and an amended
certificate of immediate review that same day. This Court granted
Sanders’ application for interlocutory appeal on March 11, 2021. On
March 17, 2021, Sanders filed a notice of appeal directed to this
Court, which she amended on March 19, 2021.
On May 26, 2021, a Gwinnett County grand jury re-indicted
Sanders for felony murder, conspiracy to commit aggravated
assault, criminal solicitation, and trafficking methamphetamine or
amphetamine. On June 9, 2021, the State moved the trial court to
enter an order of nolle prosequi as to the First Indictment, and the
trial court did so that day. On June 21, 2021, the State moved the
trial court to enter an order of nolle prosequi as to the Second
hearing, the trial court denied the July 23 special demurrer on October 29,
2020. On November 5, 2020, Sanders filed a request for a certificate of
immediate review with regard to that order. The trial court issued the
certificate but did not file it within ten days after entry of the order denying
the special demurrer. Accordingly, we deemed the certificate of immediate
review untimely and dismissed Sanders’ application for interlocutory appeal
on December 17, 2020, in case number S21I0472.
4
Indictment, which it did that same day.
2. As a preliminary matter, the State argues that Sanders’
appeal is now moot because the trial court entered an order of nolle
prosequi as to the Second Indictment after Sanders filed her notice
of appeal. We disagree.
A notice of appeal generally divests the trial court of
jurisdiction to alter the judgment or order that is being appealed.
See Ricks v. State, 303 Ga. 567, 568 (814 SE2d 318) (2018) (noting
that where a notice of appeal remains pending, the appeal acts as
supersedeas so that the trial court lacks jurisdiction to consider a
motion challenging the same judgment on appeal, and the trial
court’s ruling is a nullity necessitating vacating the trial court
order); Peterson v. State, 274 Ga. 165, 171 (6) (549 SE2d 387) (2001)
(“A notice of appeal divests the trial court of jurisdiction to alter a
judgment while appeal of that judgment is pending.”); see also Styles
v. State, 245 Ga. App. 90, 92 (537 SE2d 377) (2000) (Blackburn, P.J.,
concurring specially) (explaining that the “loss of jurisdiction”
resulting from an appeal in a criminal case applies to all
5
“proceedings which either require a ruling on the matters on appeal
or directly or indirectly affect such matters”), abrogated on other
grounds by Islamkhan v. Khan, 299 Ga. 548, 552 n.7 (787 SE2d 731)
(2016).
The scope of the supersedeas effect upon filing a notice of
appeal is governed by different statutes. Under OCGA § 5-6-34 (b),
the filing of the notice of appeal after the grant of an interlocutory
application acts as a supersedeas, meaning the order appealed from
cannot go into effect. See OCGA § 5-6-34 (b) (providing that a notice
of appeal timely filed after the grant of an appeal “shall act as a
supersedeas as provided in Code Section 5-6-46 and the procedure
thereafter shall be the same as in an appeal from a final judgment”);
see also Carr v. State, 303 Ga. 853, 870 n.19 (6) (815 SE2d 903)
(2018) (noting that appellant’s notice of appeal following the
granting of his application for interlocutory appeal should have
acted as supersedeas). We have previously held that this Code
section is a jurisdictional law that applies in criminal cases, see
Duke v. State, 306 Ga. 171, 177 (3) (a) (839 SE2d 348) (2019), and
6
the reference to the notice of appeal acting as a supersedeas “as
provided in Code Section 5-6-46” means that the General Assembly
intended that the supersedeas in a granted interlocutory application
triggered by the filing of a notice of appeal would act in the same
manner as a supersedeas in a civil action. See, e.g., Jones v. Peach
Trader, Inc., 302 Ga. 504, 508 (807 SE2d 840) (2017) (noting that
“supersedeas is presumed to attach in civil cases as soon as a notice
of appeal is filed” and “deprives the trial court of the authority to act
on the judgment on appeal”).
In contrast, OCGA § 5-6-45 provides for supersedeas in
criminal cases involving the death penalty and where the defendant
is admitted to bail. See OCGA § 5-6-45 (a) (“In all criminal cases, the
notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38
shall serve as supersedeas in all cases where a sentence of death has
been imposed or where the defendant is admitted to bail.”). This
means that the trial court cannot authorize the execution of a
convicted defendant or, if the defendant is out on bail, require her to
start serving her sentence while her appeal is pending.
7
Citing Waters v. State, 174 Ga. App. 438, 439 (1) (330 SE2d
177) (1985), the State argues that OCGA § 5-6-45 (a) governs the
notice of appeal here, and because Sanders has not been sentenced
to death or admitted to bail, that there is no supersedeas in effect.
We deem that contention unpersuasive. Sanders’ appeal is before us
following the timely grant of a certificate of immediate review and
the grant of an appeal by this Court pursuant to OCGA § 5-6-34 (b).
Thus, OCGA § 5-6-45 (a) does not govern the application of
supersedeas here, but rather, OCGA § 5-6-34 (b) does. Moreover,
under the general principle that the trial court is divested of
jurisdiction to alter the judgment or order appealed from, the trial
court was without jurisdiction to nolle pros the Second Indictment.
See Ricks, 303 Ga. at 568. Because Sanders’ notice of appeal
deprived the trial court of the authority to enter an order of nolle
prosequi as to the Second Indictment while this appeal was pending,
the order of nolle prosequi was a nullity. See OCGA § 5-6-34 (b); see
also Carr, 303 Ga. at 870 n.19 (6).
The cases cited by the State in its argument on this question
8
are inapposite, as none of them involve the supersedeas effect of an
interlocutory appeal regarding the denial of a special demurrer of an
indictment on which the trial court later took action. See State v.
LeJeune, 276 Ga. 179, 184 (3), (4) (576 SE2d 888) (2003) (trial court’s
granting the State’s request for order of nolle prosequi of a second
indictment, following the quashing of the first indictment, did not
trigger the statute barring the State from continuing to prosecute a
defendant if a trial court has twice quashed charges against him,
and the filing of a notice of appeal as to the first indictment did not
divest the trial court of jurisdiction to grant the State’s petition for
a nolle prosequi order as to the second indictment); Strickland v.
State, 258 Ga. 764, 765 (1) (373 SE2d 736) (1988) (filing of a notice
of appeal on an order denying a plea of former jeopardy does not
divest a trial court of jurisdiction to amend the order, nunc pro tunc,
to find the plea frivolous and dilatory); Brown v. State, 322 Ga. App.
446, 447-450 (1) (745 SE2d 699) (2013) (notice of appeal as to the
first indictment did not act as supersedeas as to trial court’s
consideration of the second indictment where trial court’s
9
consideration did not directly or indirectly affect the issues on
appeal); Blanton v. State, 324 Ga. App. 610, 613-614 (751 SE2d 431)
(2013) (after being re-indicted a third time, defendant appealed, and
the Court of Appeals held that the trial court did not abuse its
discretion in granting an order of nolle prosequi as to the first
indictment).
For these reasons, Sanders’ appeal from the denial of her
special demurrer as to the Second Indictment is not moot.
3. Turning to the merits of her appeal, Sanders argues that
each of the counts against her in the Second Indictment is
insufficient and that her special demurrer should have been
granted. We agree with respect to Counts 2, 4, and 5. However, we
hold that Counts 1, 3, and 6 are not subject to a special demurrer on
the grounds argued by Sanders.
“A defendant is entitled to be tried on a perfect indictment and
may file a special demurrer seeking greater specificity or additional
information concerning the charges contained in the indictment.”
Jones v. State, 289 Ga. 111, 115 (2) (c) (709 SE2d 773) (2011). With
10
respect to a special demurrer, the test for determining the
constitutional sufficiency of an indictment
is not whether it could have been made more definite and
certain, but whether it contains the elements of the
offense intended to be charged, and sufficiently apprises
the defendant of what he must be prepared to meet, and,
in case any other proceedings are taken against him for a
similar offense, whether the record shows with accuracy
to what extent he may plead a former acquittal or
conviction.
(Punctuation and citation omitted.) State v. Wyatt, 295 Ga. 257, 260
(2) (759 SE2d 500) (2014); see also State v. Grube, 293 Ga. 257, 258
(2) (744 SE2d 1) (2013). “It is useful to remember that the purpose
of the indictment is to allow [the] defendant to prepare his defense
intelligently and to protect him from double jeopardy.” Jones, 289
Ga. at 116 (2) (c); see also Dunn v. State, 263 Ga. 343, 344 (2) (434
SE2d 60) (1993) (“Due process is satisfied where the indictment puts
the defendant on notice of the crimes with which he is charged and
against which he must defend.”). “We review a ruling on a special
demurrer de novo to determine the legal sufficiency of the
allegations in the indictment.” Hinkson v. State, 310 Ga. 388, 392 (3)
11
(850 SE2d 41) (2020).
(a) Count 1 charges Sanders with felony murder predicated on
conspiracy to commit aggravated assault, and reads as follows:
[O]n the 22nd day of January, 2018, while in the
commission of the offense of Conspiracy to Commit
Aggravated Assault, a felony, [Sanders] did cause the
death of Eugene Singletary, a human being, by gunshot,
contrary to the laws of said State, the good order, peace
and dignity thereof.
Sanders argues that Count 1 is flawed because it fails to sufficiently
allege: (i) the proximate cause element of felony murder; (ii) a
conspiracy because it does not identify the co-conspirator or an overt
act in furtherance of the conspiracy; (iii) facts about the aggravated
assault; and (iv) an inherently dangerous or life-threatening
underlying felony. Sanders’ arguments lack merit.
(i) Sanders argues that Count 1 fails to allege proximate cause
in sufficient detail and that she should have been given more
information about the causal link between the alleged conspiracy
and Singletary’s death. We disagree.
12
Count 1 alleges that Sanders caused Singletary’s death by
gunshot while in the commission of conspiracy to commit aggravated
assault. The indictment therefore contains the requisite causal
element, gives Sanders notice of the charge against her, and
“enables [her] to intelligently prepare a defense and safeguard
against double jeopardy.” State v. English, 276 Ga. 343, 347 (2) (c)
(578 SE2d 413) (2003). See also OCGA § 16-5-1 (c) (“A person
commits the offense of murder when, in the commission of a felony,
he or she causes the death of another human being irrespective of
malice.”). While Sanders may desire greater detail about how the
conspiracy resulted in Singletary’s death, “[i]t is not required that
the indictment give every detail of the crime.” Id. at 346 (2) (a).
Instead, the additional detail desired by Sanders “may be
supplemented . . . by the pretrial discovery [s]he receives and any
investigation [her] counsel conducts.” Wyatt, 295 Ga. at 263 (2) (a).
“[T]he language of the indictment is not too vague to inform
[Sanders] of the charges against her[,]” and the trial court did not
err in denying the special demurrer on these grounds. (Citation and
13
punctuation omitted.) Hester v. State, 283 Ga. 367, 368 (2) (659 SE2d
600) (2008).
(ii) Sanders also argues that Count 1 is flawed because it fails
to sufficiently allege a conspiracy. More specifically, Sanders argues
that Count 1 fails to identify a co-conspirator or an overt act in
furtherance of the conspiracy. However, because the alleged
deficiencies are addressed in the allegations of the conspiracy count
of the indictment, we disagree that the alleged errors required a
special demurrer to be granted.
“Although each count must be wholly complete within itself
and contain every allegation essential to constitute the crime, this
rule applies only to the offense rather than the form[,]” and “the
indictment is read as a whole.” State v. Jones, 274 Ga. 287, 288-289
(1) (553 SE2d 612) (2001); see also Hester, 283 Ga. at 368 (2) (the
rule applies to “essential elements of the crime, and not to the form
of the indictment or to factual details alleged therein”). Sanders’
claim that Count 1 must be vacated because it did not allege the
essential elements of the underlying offense of conspiracy to commit
14
aggravated assault is a challenge to the form of the indictment. See
Middleton v. State, 310 Ga. 365, 369 (2) (850 SE2d 126) (2020).
Accordingly, because we read the indictment as a whole, we consider
whether Count 3, which charges Sanders with conspiracy to commit
aggravated assault, provides the information Sanders complains is
missing from Count 1.
Count 3 charges Sanders with conspiracy to commit
aggravated assault, and it alleges that Sanders “did unlawfully
conspire with Eugene Singletary” to commit an aggravated assault
against Conley. Thus, assuming without deciding that Sanders is
correct in arguing that a co-conspirator had to be identified for the
indictment to be constitutionally sufficient, Count 3 provides this
information.
Count 3 further alleges “the overt acts of planning to assault
said Chaz Conley and texting him to lure him to a certain location
under false pretenses[.]” Sanders argues that “planning to assault”
Conley does not qualify as an overt act. Assuming, arguendo, that
Sanders is correct in this assertion, the allegation that Sanders
15
texted Conley “to lure him to a certain location under false
pretenses” sufficiently sets forth an overt act, and “we find no
authority requiring the indictment to set forth the particulars of the
overt act” in greater detail than what is alleged here. Bradford v.
State, 283 Ga. App. 75, 78 (2) (640 SE2d 630) (2006); see also
Simmons v. State, 174 Ga. App. 171, 172-173 (3) (329 SE2d 312)
(1985). Accordingly, the conspiracy elements alleged in Count 3 can
be considered with Count 1 for this analysis. And Count 1 is not
subject to a special demurrer on the ground that it does not
sufficiently allege a conspiracy.
(iii) Sanders further argues that Count 1 is subject to a special
demurrer because it fails to allege facts about the aggravated
assault she allegedly conspired to commit. Specifically, Sanders
argues that she cannot tell from the indictment whom she allegedly
planned to assault or how she planned to do so. Sanders’ argument
lacks merit.
“[A]n indictment does not have to contain every detail of the
crime to withstand a special demurrer,” but rather must allege the
16
“underlying facts with enough detail to sufficiently apprise the
defendant of what [s]he must be prepared to meet.” (Citations and
punctuation omitted.) Kimbrough v. State, 300 Ga. 878, 881 (2) (799
SE2d 229) (2017). As set forth above, Count 3 alleges that Sanders
conspired to assault an identified victim, Conley. Because we
consider the indictment as a whole, see Jones, 274 Ga. at 288-289,
the victim’s identification provided in Count 3 may be used to
provide the information that Sanders complains is missing from
Count 1. See Wyatt, 295 Ga. at 260-261 (2).
Further, the indictment is detailed enough for Sanders to
prepare her defense to the charge of felony murder predicated on
conspiracy to commit aggravated assault without additional
information regarding precisely how she planned to commit the
aggravated assault. Because Sanders had notice that the charge of
felony murder predicated on conspiracy to commit aggravated
assault involved the use of a firearm, Sanders was sufficiently
informed that she would need to defend against all the possible ways
in which she could have planned to commit an aggravated assault
17
using a firearm. See Hinkson, 310 Ga. at 394 (3) (“[A]n indictment
need not say how the defendant used the weapon or object that
aggravated the assault.”) (citation omitted); Arthur v. State, 275 Ga.
790, 791 (2) (573 SE2d 44) (2002) (affirming the denial of a special
demurrer because, “by alleging [the defendant’s] general use of a
gun, the State apprised him that he would have to defend against
all of the possible ways of committing the assault”). Accordingly,
Sanders’ arguments that a special demurrer was warranted as to
Count 1 on these grounds fail.
(iv) Lastly, Sanders argues that Count 1 is subject to a special
demurrer because it fails to sufficiently allege an inherently
dangerous or life-threatening underlying felony. Sanders argues
that because the count fails to specify any aggravating factors, the
alleged conspiracy is actually one to commit a simple assault, which
is not an inherently dangerous felony. Sanders’ argument lacks
merit.
The only limitation on the type of felony that may serve
as an underlying felony for a felony murder conviction is
that the felony must be inherently dangerous to human
18
life. For a felony to be considered inherently dangerous, it
must be dangerous per se or it must by its circumstances
create a foreseeable risk of death. In determining whether
a felony meets that definition, this Court does not
consider the elements of the felony in the abstract, but
instead considers the circumstances under which the
felony was committed.
Funck v. State, 296 Ga. 371, 373-374 (1) (768 SE2d 468) (2015).
Aggravated assault has been recognized by this Court as an
inherently dangerous felony. See, e.g., Smith v. State, 290 Ga. 768,
771 (2) (723 SE2d 915) (2012) (describing aggravated assault as an
“inherently dangerous felony” that can support a felony murder
conviction). It stands to reason, then, that a conspiracy to commit an
inherently dangerous felony, such as aggravated assault, would also
be inherently dangerous.
Sanders argues that the count must allege the element that
aggravates the crime above a simple assault. We agree that this is
true where a defendant is charged with aggravated assault. See
Wyatt, 295 Ga. at 261 (2) (a) (an indictment for aggravated assault
must allege the “element that aggravates the crime above a simple
assault”). But as recounted in paragraph 4 (a) above, Count 1
19
charges Sanders with felony murder based on the “offense of
Conspiracy to Commit Aggravated Assault, a felony,” and further
alleges that Sanders caused the death of Singletary by gunshot.
Thus, regardless of whether the State was required to name an
inherently dangerous felony in this count, the indictment implicitly
alleged the use of a deadly weapon (a gun) in the actions leading to
the death of Singletary, which sufficiently supports the aggravated
nature of the assault. See Lewis v. State, 283 Ga. 191, 195-196 (6)
(657 SE2d 854) (2008) (language of indictment alleging that
defendant “did while in commission of the felony of aggravated
assault, cause the death of [the victim] . . . by shooting him”
sufficient to put defendant on notice of grounds for aggravation
based on use of a deadly weapon); White v. State, 270 Ga. 804, 807
(1) (514 SE2d 14) (1999) (collecting cases and noting that the
aggravated nature of the assault was set out in the indictments
where the weapon named as being used was a “deadly weapon per
se”). Therefore, a special demurrer on the grounds argued by
Sanders here is not warranted, and Sanders’ argument that Count
20
1 should have been dismissed fails.
(b) Sanders next argues that her special demurrer as to Count
2 of the Second Indictment should have been granted because it fails
to allege the elements of, or sufficient facts about, the conspiracy or
armed robbery and fails to sufficiently allege a causal connection
between the conspiracy and Singletary’s death. Count 2, which
charges Sanders with felony murder predicated on conspiracy to
commit armed robbery, reads as follows:
[O]n the 22nd day of January, 2018, while in the
commission of the offense of Conspiracy to Commit Armed
Robbery, a felony, [Sanders] did cause the death of
Eugene Singletary, a human being, by gunshot, contrary
to the laws of said State, the good order, peace and dignity
thereof.
The State concedes that Count 2 fails to sufficiently allege armed
robbery and contends that it does not intend to proceed with this
charge.
We agree that Count 2 fails to allege the elements of the
predicate felony of conspiracy to commit armed robbery because in
neither that count nor any count in the Second Indictment has the
21
State alleged the elements of a conspiracy to commit armed
robbery.5 In the context of post-conviction challenges to indictments,
we have previously stated:
In order to satisfy due process when an indictment
charges a compound felony such as felony murder, the
count charging the compound offense must contain the
essential elements of the predicate offense, or the
indictment must contain a separate count charging the
predicate offense completely, or the indictment must
elsewhere allege facts showing how the compound offense
was committed.
Stinson v. State, 279 Ga. 177, 178 (2) (611 SE2d 52) (2005); see also
Mikenney v. State, 277 Ga. 64, 65 (1) (586 SE2d 328) (2003) (“[A]n
indictment which omits an essential element of the predicate offense
in a count charging a compound offense can nonetheless satisfy the
requirements of due process as long as the indictment charges the
predicate offense completely in a separate count.” (citations and
punctuation omitted)); Dunn v. State, 263 Ga. 343, 344 (2) (434 SE2d
60) (1993) (same). The same holds true here. The defendant must
5 The State purported to allege a conspiracy to commit armed robbery in
Count 4, but for the reasons explained below, that count is also subject to a
special demurrer. See Division 3 (d) below.
22
have some understanding of how her alleged conduct amounted to
the predicate felony of the felony murder charge in order for that
charge to withstand a special demurrer. Thus, the essential
elements of the underlying felony of conspiracy to commit armed
robbery must be sufficiently alleged somewhere in the indictment
for this count to survive.
The essential elements of conspiracy that must be alleged in an
indictment are set forth in OCGA § 16-4-8, which provides that “[a]
person commits the offense of conspiracy to commit a crime when he
together with one or more persons conspires to commit any crime
and any one or more of such persons does any overt act to effect the
object of the conspiracy.” See Hendricks v. State, 277 Ga. 61, 62 (2)
(586 SE2d 317) (2003) (“The elements of conspiracy to commit a
crime are conspiring and the performance of an overt act to effect
the crime.”). Because Count 2 fails to allege any of these elements
and there is no count for conspiracy to commit armed robbery
anywhere else in the Second Indictment, Count 2 fails. The trial
court therefore erred in denying Sanders’ special demurrer as to
23
Count 2, and its judgment is therefore reversed as to this count.
(c) Sanders argues that Count 3, which charges Sanders with
conspiracy to commit aggravated assault, should be dismissed
because it fails to allege a conspiracy or an aggravating factor.
However, Sanders’ arguments fail for the reasons outlined in
Division 3 (a) (ii)-(iv) above. Accordingly, Count 3 is not subject to a
special demurrer on these grounds.
(d) Sanders also argues that her special demurrer as to Count
4 should have been granted because it is a duplicative charge. Count
4 is captioned “conspiracy to commit armed robbery,” but the
substance of this Count actually is the same as Count 3, which
alleges a conspiracy to commit aggravated assault. 6 The State
6 Count 3 alleged that Sanders committed conspiracy to commit
aggravated assault by “conspir[ing] with Eugene Singletary to commit the
offense of Aggravated Assault against Chaz Conley, and in furtherance of said
conspiracy, the overt acts of planning to assault said Chaz Conley and texting
him to lure him to a certain location under false pretenses were done to effect
the object of the conspiracy[.]”
Count 4 alleged that Sanders committed conspiracy to commit armed
robbery by “conspir[ing] with Eugene Singletary to commit the offense of
Aggravated Assault against Chaz Conley, and in furtherance of said
conspiracy, the overt acts of planning to assault said Chaz Conley and texting
him to lure him to a certain location under false pretenses were done to effect
the object of the conspiracy[.]”
24
concedes that Count 4 does not sufficiently charge Sanders with a
conspiracy to commit armed robbery and that it does not intend to
go forward with this charge. We agree with Sanders that her special
demurrer as to Count 4 should have been granted.
The substance, not the caption, of the indictment controls. See
State v. Eubanks, 239 Ga. 483, 484 (238 SE2d 58) (1977), superseded
in part on other grounds as noted in Palmer v. State, 282 Ga. 466,
467 (651 SE2d 86) (2007); Jackson v. State, 316 Ga. App. 588, 592
(2) (730 SE2d 69) (2012). Because Count 4 is “entirely duplicative”
of another count and provides “no additional facts by which it [could]
be distinguished from that count,” a grant of special demurrer is
warranted here. State v. Meeks, 309 Ga. App. 855, 859 (2) (711 SE2d
403) (2011); see also Williams v. State, 307 Ga. 778, 783 (2) n.8 (838
SE2d 235) (2020). The trial court erred in denying Sanders’ special
demurrer as to Count 4, and its judgment is therefore reversed as to
this count.
(e) Sanders next argues that her special demurrer as to Count
5 should have been granted because it fails to allege any facts
25
supporting the charged offense. We agree.
Count 5 reads:
[O]n the 22nd day of January, 2018, with intent that
another person engage in conduct constituting a felony,
[Sanders] did request Chaz David Conley to commit the
felony offense of Violation of the Georgia Controlled
Substances Act: Possession of a Controlled Substance,
contrary to the laws of said State, the good order, peace
and dignity thereof.
“A person commits the offense of criminal solicitation when, with
intent that another person engage in conduct constituting a felony,
he solicits, requests, commands, importunes, or otherwise attempts
to cause the other person to engage in such conduct.” OCGA § 16-4-
7 (a). The indictment alleges that Sanders requested that Conley
possess an unspecified amount of an unspecified drug, which the
indictment alleges is a felony violation of the Georgia Controlled
Substances Act. See OCGA § 16-13-30.
While an indictment “does not have to contain every detail of
the crime to withstand a special demurrer,” it must “state the
essential elements of the offense charged” and “must allege the
underlying facts with enough detail to sufficiently apprise the
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defendant of what [s]he must be prepared to meet.” (Citations and
punctuation omitted.) Kimbrough, 300 Ga. at 881 (2). Here, Count 5
of the Second Indictment fails to allege any underlying facts, such
as what drug Sanders requested that Conley possess or in what
quantity, that constitute a felony violation of the Georgia Controlled
Substances Act. As written, Count 5 does not give Sanders enough
information about the criminal solicitation charge to “prepare [her]
defense intelligently,” as Sanders could have violated the statute in
a number of possible ways. English, 276 Ga. at 346 (2) (a). Compare
Lord v. State, 235 Ga. 342, 343 (3) (219 SE2d 425) (1975) (indictment
sufficient to withstand special demurrer where it alleged that the
defendant possessed specified amount of marijuana in violation of
the Georgia Controlled Substances Act). And although we read the
indictment “as a whole[,]” Jones, 274 Ga. at 289 (1), it is not clear
from the allegations in the Second Indictment that the drug
referenced in Count 6, which alleges that Sanders committed felony
trafficking of methamphetamine, is the same drug that Sanders is
alleged to have requested Conley to possess in violation of the
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Georgia Controlled Substances Act in Count 5. Accordingly, the
special demurrer should have been granted as to Count 5, and the
trial court erred in denying it. The judgment of the trial court is
therefore reversed as to Count 5.
(f) Lastly, Sanders argues that the trial court should have
granted her special demurrer as to Count 6 because the title of the
count is confusing, the count does not specify whether she is being
charged with a felony or misdemeanor, the count alleges an incorrect
date, and the count contains a grammatical error. We disagree that
the alleged errors warrant special demurrer as to this count.
Sanders complains that the title of Count 6, “Trafficking
Methamphetamine or Amphetamine,” is confusing because the body
of the count charges her only with possessing methamphetamine.
While the title of this count could cause confusion, the substance of
the indictment controls, not the caption. See Eubanks, 239 Ga. at
484; Jackson, 316 Ga. App. at 592. And the substance of Count 6
clearly identifies methamphetamine as the controlled substance in
question. Sanders also complains that Count 6 fails to state whether
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she is being charged with a felony or misdemeanor. But it is clear
from the amount of methamphetamine specified in the indictment –
i.e., over 28 grams – that Sanders is being charged with felony
trafficking in violation of OCGA § 16-13-31 (e).
Finally, Sanders complains that Count 6 alleges an incorrect
date and contains a grammatical error. But “[w]hen a special
demurrer points out an immaterial defect, the trial court need not
dismiss the defective charge, but may strike out or correct the
erroneous portion of the indictment.” Green v. State, 292 Ga. 451,
452 (2013); see also Reed v. State, 294 Ga. 877, 879-880 (2014)
(where date is not alleged to be an essential element of the offense
charged and accused has not raised an alibi defense, “any variance
between the date listed in the indictment and the date on which the
crime is proven to have occurred is of no consequence”). The trial
court did not err in denying Sanders’ special demurrer as to Count
6, and its judgment on that count is affirmed.
Judgment affirmed in part and reversed in part. All the
Justices concur, except LaGrua, J., not participating.
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