State v. John James Lampl

• Court: Court of Appeals of Georgia
• Decided: October 28, 2013
• Docket: A13A1071
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, 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/

October 28, 2013

In the Court of Appeals of Georgia A13A1071. THE STATE v. LAMPL. A13A1072. LAMPL v. THE STATE.

RAY, Judge.

On September 14, 2011, a Clayton County grand jury indicted John James

Lampl for the offenses of conspiracy in restraint of free and open competition (Count

I), false statements and writings (Counts II-VII), and perjury (Count VIII). The grand

jury’s indictment stemmed from an earlier investigation by a Clayton County special

purpose grand jury which had been impaneled pursuant to OCGA § 15-12-100 for the

purpose of investigating public corruption and various crimes allegedly committed

by currently or previously elected county officials and county employees. As Lampl

was neither a county official nor a county employee, he moved to dismiss all counts

of the indictment, contending that he was the “target” of an unlawful investigation by the special purpose grand jury and that he should not have been compelled to testify

at the special purpose grand jury proceedings.

The perjury charge was based on a portion of Lampl’s testimony to the special

purpose grand jury. In its ruling on the motion to dismiss, the trial court found that

the special purpose grand jury was not authorized to conduct an investigation of

Lampl, who was an employee of the City of Morrow, and was not authorized to

investigate Lampl’s involvement with “Olde Towne Morrow,” a real estate

development project for the City of Morrow. The trial court further found that the

special purpose grand jury was not authorized to subpoena Lampl to testify regarding

matters which exceeded the scope of its investigation. Accordingly, the trial court

granted Lampl’s motion to dismiss with regard to the perjury count (Count VIII) of

the indictment, and it also granted his motion to suppress the statements that he made

to the special purpose grand jury. However, the trial court denied Lampl’s motion to

dismiss with regard to the remaining counts of the indictment (Counts I - VII), finding

that the indictment was brought by a properly constituted grand jury which was

authorized to indict Lampl for these offenses.

Both parties appeal from the trial court’s ruling, and their cross-appeals are

consolidated for our review. In Case No. A13A1071, the State contends that the trial

2 court erred in dismissing the perjury count because the special purpose grand jury did

not exceed the scope of its investigation. The State argues that the investigation into

the Olde Towne Morrow project, as well as the questioning of Lampl, potentially

involved corruption at the county level. The State further contends that the trial court

erred in suppressing Lampl’s statements because (1) the special purpose grand jury

had the authority to subpoena Lampl; (2) Lampl testified voluntarily; and (3) there

was no violation of Lampl’s constitutional rights. In Case No. A13A1072, Lampl

contends that the trial court erred in denying his plea in bar and motion to dismiss

with regard to the remaining counts (Counts I - VII) of the indictment, arguing that

the State had engaged in prosecutorial misconduct by, inter alia, exceeding the legal

limitations of the special purpose grand jury and allowing the special purpose grand

jury to subpoena and compel Lampl to testify at the grand jury proceedings even

though he was the intended target of the unauthorized investigation. Lampl argues

that dismissal of the indictment was warranted because the State’s misconduct was

so outrageous and fundamentally unfair that it shocks the universal sense of justice

mandated by the due process clause. For the reasons that follow, we affirm the

judgments.

3 Case No. A13A1071

1. The State contends that the trial court erred in dismissing the perjury count

(Count VIII) of the indictment. Essentially, the State argues that the special purpose

grand jury was authorized to investigate the Olde Towne Morrow project because it

potentially involved corruption at the county level, and that the special purpose grand

jury did not exceed the scope of its investigative authority when it subpoenaed Lampl

and questioned him with regard to his involvement in the city project. We disagree.

A special purpose grand jury may be impaneled “for the purpose of

investigating any alleged violation of the laws of this state or any other matter subject

to investigation by grand juries as provided by law.” OCGA § 15-12-100 (a).

Although a special purpose grand jury is limited to investigative purposes and has no

power to return an indictment,1 the law otherwise relative to regular grand juries

applies to special purpose grand juries. See OCGA § 15-12-102. With respect to

regular grand juries, their duties “shall be confined to such matters and things as [they

are] required to perform by the Constitution and laws or by order of . . . the superior

court of the county [in which they are impaneled].” OCGA § 15-12-71 (a).

1 See Kenerly v. State, 311 Ga. App. 190, 190-194 (1) (715 SE2d 688) (2011).

4 In this case, the Clayton County Superior Court entered an order impaneling

the special purpose grand jury “for the purpose of investigating public corruption and

various crimes allegedly committed by currently or previously elected county officials

and county employees.” It is undisputed that Lampl was an employee of the City of

Morrow, and that he was neither a currently or previously elected county official or

county employee. Furthermore, our review of the transcripts of the special purpose

grand jury proceedings indicate that the investigation focused on Lampl and the

contracting irregularities related to the Olde Towne Morrow project, a matter that did

not involve county officials or county employees. Accordingly, we agree with the trial

court that the special purpose grand jury did not have the authority to investigate

Lampl or the Olde Towne Morrow project.

Likewise, we agree with the trial court that the special purpose grand jury

lacked the authority to subpoena Lampl for the purpose of investigating the Olde

Towne Morrow project and his involvement in the same. While a special purpose

grand jury may subpoena witnesses and compel evidence, its power to do so is limited

to matters which relate directly or indirectly to the authorized investigation. See

OCGA § 15-12-100 (c). Here, the special purpose grand jury was not authorized to

investigate Lampl or the Olde Towne Morrow project. As Lampl’s perjury charge

5 arose out of his testimony during this unauthorized investigation, the trial court did

not err in dismissing the perjury count. See State v. Bartel, 223 Ga. App. 696, 696-

697 (479 SE2d 4) (1996) (“The law of Georgia does authorize a perjury prosecution

against witnesses who swear falsely in testimony before local grand juries conducting

civil investigations, so long as the grand jury is lawfully conducting an investigation

authorized by state law”) (emphasis supplied).

2. The State makes the additional argument that we should reverse the ruling

of the trial court and remand the case to allow the State to present additional evidence

regarding the authorized scope of the special purpose grand jury’s investigation. It

contends that trial court erroneously prevented the State from presenting evidence on

this issue. Specifically, the State argues that the trial court erred by (i) failing to

consider redacted portions of the superior court order impaneling the special purpose

grand jury; (ii) refusing to permit the State to proffer an unredacted copy of the order;

and (iii) refusing to accept testimony from the superior court judge who had been

assigned to follow the progress of the special purpose grand jury. This argument is

wholly without merit.

Prior to the hearing on the plea in bar and motion to dismiss, Lampl filed a

motion with the trial court seeking to obtain a copy of the order impaneling the

6 special purpose grand jury. Over the State’s objection, the trial court granted Lampl’s

motion. In its ruling, the trial court directed that redacted copies of the order be

released to the parties, with the names of the specific targets of the investigation

blacked out. The trial court further stated that Lampl’s name was not among those

listed in the order as an authorized target of the special purpose grand jury

investigation.

At the hearing on Lampl’s plea in bar and motion to dismiss, the State did not

make a proffer or request to have an unredacted copy of the order impaneling the

special purpose grand jury admitted into evidence, nor did it seek to call as a witness

the judge who presided over the special purpose grand jury. Thus, the State has failed

to show any error on the part of the trial court.

As the State was afforded an opportunity to present evidence at the hearing and

failed to do so, we conclude that remanding the case to give the State a second

opportunity to present evidence is inappropriate and unauthorized. See e.g., Mosby

v. State, 319 Ga. App. 642, 645 (1) (738 SE2d 98) (2013).

7 3. The State further contends that the trial court erred in suppressing Lampl’s

statements to the special purpose grand jury.2 In light of our holding in Division 1,

we need not address this enumeration.

Case No. A13A1072

4. While the trial court granted Lampl’s plea in bar and motion to dismiss with

regard to the perjury count of the indictment (Count VIII), Lampl contends that the

trial court erred in failing to dismiss the remaining counts of conspiracy in restraint

of free and open competition (Count I) and false statements and writings (Counts II -

VII).

In his motion and in his argument at the hearing on his motion to dismiss

before the trial court, Lampl argued that the district attorney had orchestrated the

unauthorized investigation of Lampl and the Olde Towne Morrow project and, thus,

had engaged in prosecutorial misconduct that was so outrageous and fundamentally

unfair that it violated due process of law, warranting dismissal of the indictment in

toto.

2 The trial court found that Lampl’s statements could be used for the limited purposes of impeachment. This finding has not been raised as an enumeration of error on appeal.

8 However, “[a] plea in bar is one which goes to bar the [S]tate’s action; that is

to defeat it absolutely and entirely.” (Citation and punctuation omitted.) State v.

Land-O-Sun Dairies, Inc., 204 Ga. App. 485, 486 (419 SE2d 743) (1992). A plea in

bar typically involves some legal impediment which precludes the State from

prosecuting its case, such as the prohibition against successive prosecutions for the

same crime (double jeopardy) (Banks v. State, 320 Ga. App. 98 (739 SE2d 414)

(2013)), the violation of a defendant’s right a speedy trial (Singleton v. State, 317 Ga.

App. 637 (732 SE2d 312) (2012)), or the expiration of the statute of limitations (State

v. Mullins, 321 Ga. App. 671 (742 SE2d 490) (2013)). Here, Lampl is arguing that the

district attorney engaged in prosecutorial misconduct during the unauthorized

investigation by the special purpose grand jury, which violated his due process rights.

“Although federal and state courts possess the authority to dismiss an

indictment for governmental misconduct, dismissal is an extreme sanction which

should be infrequently utilized. Dismissal is only favored in the most egregious

cases.” (Citation and punctuation omitted.) Robinson v. State, 200 Ga. App. 515, 517

(1) (408 SE2d 820) (1991). This is not such a case.

The remedy for an alleged constitutional violation involving governmental

misconduct should be tailored to the injury suffered from the violation. (Citations

9 omitted.) Wilcox v. State, 250 Ga. 745, 755 (4) (301 SE2d 251) (1983). Furthermore,

the dismissal of an indictment is not the appropriate remedy when the case may

proceed with full recognition of the defendant’s right to a fair trial. (Citations

omitted.) Id. at 756 (4). Assuming that the unauthorized investigation of Lampl and

his involvement in the Olde Towne Morrow Project involved prosecutorial

misconduct which violated Lampl’s due process rights, the dismissal of the

indictment is not appropriate because Lampl was afforded an adequate remedy, i.e.

the suppression of his statements. See, e.g, McGarvey v. State, 186 Ga. App. 562, 563

(2) (368 SE2d 127) (1988) (defendant was not entitled to have indictment dismissed

for prosecutorial misconduct based on the district attorney’s refusal to provide the

defense with one of defendant’s statements, because exclusion of the statement was

an available remedy).

Since the trial court granted Lampl’s motion to suppress the statements he

made to the special purpose grand jury, there has been no actual prejudice to Lampl

which would affect his ability to receive a fair trial. Under these circumstances, the

remedy of dismissing the indictment is not warranted.

Judgments affirmed. Barnes, P. J., and Miller, J., concur.