NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: April 30, 2024
S24A0239. POWELL v. THE STATE.
S24A0240. SCOTT v. THE STATE.
LAGRUA, Justice.
In these appeals—which have been consolidated for purposes
of issuing an opinion—we decide whether an indictment charging
two former police officers with violations of their oaths of office
under OCGA § 16-10-1 by failing to conduct investigations of other
police officers in purported violation of Brady v. Maryland, 373 U.S.
83 (83 SCt 1194, 10 LE2d 215) (1963), is sufficient to withstand the
general demurrers filed in the case below.1 For the reasons that
follow, we conclude that the indictment at issue is not sufficient to
withstand the general demurrers and violates federal constitutional
1 OCGA § 16-10-1 provides that “[a]ny public officer who willfully and
intentionally violates the terms of his oath as prescribed by law shall, upon
conviction thereof, be punished by imprisonment for not less than one nor more
than five years.”
due process, and thus, the trial court’s order denying the general
demurrers to the indictment should be reversed.
1. Appellant John Powell, formerly the Chief of Police of Glynn
County, and Appellant Brian Scott, formerly Powell’s Chief of Staff,
were indicted together in the Superior Court of Glynn County for
violation of their oaths as public officers for allegedly violating
Brady by failing to promptly investigate certain allegations of police
misconduct, failing to conduct an internal affairs investigation into
this alleged conduct, and/or failing to take other administrative
action related to this alleged conduct.2 Specifically, in Count 1 of the
2 On August 20, 2021, a Glynn County grand jury returned the
indictment against Powell and Scott, charging Powell with four counts of
violation of oath by a public officer (Counts 1 through 4) and Scott with one
count of violation of oath by a public officer (Count 1). Powell’s and Scott’s oaths of office are attached as exhibits to the indictment. Powell’s Oath of Office
states in pertinent part:
I, JOHN R. POWELL, do solemnly swear (or affirm) that I will
uphold the Constitution of the United States, the Constitution and
statutes of the State of Georgia, and the Ordinances of the County
of Glynn and that I will faithfully discharge my duties fairly and
impartially as a police officer and as the Chief of the Glynn County
Police Department. . . .
Scott’s Oath of Office states in pertinent part:
I do solemnly swear (or affirm) that I will uphold the [C]onstitution
of the United States, the Constitution and statutes of the State of
Georgia and the Ordinances of the County of Glynn. I will
faithfully discharge my duties fairly and impartially as a police
2
indictment, Powell and Scott were jointly charged with “willfully
and intentionally” violating the terms of their oaths of office under
OCGA § 16-10-1 in the following manner:
in that they did fail to uphold the Constitution of the
United States, which provides in Article VII, Amendment
V, that no person shall be deprived of life, liberty, or
property without due process, as interpreted by the U.S.
Supreme Court in Brady v. Maryland, 373 U.S. 83 (83 SCt
1194, 10 LE2d 215) (1963), and the said accused, after
being shown a photograph of Glynn County Investigator
John Dustin Simpson of the Glynn/Brunswick Narcotics
Enforcement Team, hereinafter referred to as GBNET,
posing with Brian Highsmith, a convicted felon for
Possession With Intent to Distribute Methamphetamine,
and being informed that John Dustin Simpson and Brian
Highsmith maintain a close personal relationship, and
said relationship being a violation of GBNET and Glynn
County Police Department, . . . fail[ing] to promptly
investigate said allegations and fail[ing] to timely conduct
an Internal Affairs investigation of said allegations. . . .
In Count 2 of the indictment, Powell was individually charged with
“willfully and intentionally” violating the terms of his oath of office
under OCGA § 16-10-1 in the following manner:
in that he did fail to uphold the Constitution of the United
States, which provides in Article VII, Amendment V, that
no person shall be deprived of life, liberty, or property
without due process, as interpreted by the U.S. Supreme
officer of Glynn County, so help me God. . . .
3
Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10
LE2d 215) (1963), and the said accused, after being
notified by the Camden County Sheriff, Jim Proctor, that
Glynn/Brunswick Narcotics Enforcement Team officers,
hereinafter referred to as GBNET, were working
undercover drug investigations in Camden County,
Georgia without any legal authority to conduct said
investigations, . . . fail[ing] to initiate an Internal Affairs
investigation into said conduct and [] fail[ing] to take any
administrative action in regard to the GBNET personnel
involved in Camen County. . . .
In Count 3 of the indictment, Powell was individually charged with
“willfully and intentionally” violating the terms of his oath of office
under OCGA § 16-10-1 in the following manner:
in that he did fail to uphold the Constitution of the United
States, which provides in Article VII, Amendment V, that
no person shall be deprived of life, liberty, or property
without due process, as interpreted by the U.S. Supreme
Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10
LE2d 215) (1963), and the said accused, after being
notified by McIntosh County Sheriff, Steve Jessup, that
Colonel Danny Lowe of the McIntosh County Sheriff’s
Office had been stopped and detained by Glynn County
law enforcement officers with the assistance of
Glynn/Brunswick Narcotics Enforcement Team officers,
hereinafter referred to as GBNET, on two different
occasions and under questionable circumstances, . . .
fail[ing] to initiate an Internal Affairs investigation into
said traffic stop and [] fail[ing] to identify the GBNET
officers involved in said traffic stop, and [] fail[ing] to take
any administrative action against any personnel involved
4
in said traffic stop. . . .
In Count 4 of the indictment, Powell was individually charged with
“willfully and intentionally” violating the terms of his oath of office
under OCGA § 16-10-1 in the following manner:
in that he did fail to uphold the Constitution of the United
States, which provides in Article VII, Amendment V, that
no person shall be deprived of life, liberty, or property
without due process, as interpreted by the U.S. Supreme
Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10
LE2d 215) (1963), and the said accused, after being
notified that Glynn/Brunswick Narcotics Enforcement
Team officers, hereinafter referred to as GBNET, were
working as law enforcement officers in the State of
Florida, without any legal authority to do so, and that the
GBNET officers requested a Glynn County Police Officer
Kevin Yarborough to effect a traffic stop on a specific
vehicle, and later requested that the Glynn County Police
Officer Kevin Yarborough omit from his official report
involving a fatality that GBNET officers had fact initiated
the traffic stop, . . . fail[ing] to initiate an Internal Affairs
investigation into the conduct of the GBNET officers and
[] fail[ing] to take any administrative action against any
personnel involved. . . .
In November 2021, Powell and Scott each filed a general
demurrer to the indictment,3 asserting, among other things, that the
3 At the same time, Powell and Scott also filed special demurrers to this
indictment, as well as separate statutory demands for speedy trial pursuant to
5
indictment (1) “fails to adequately charge [Powell and Scott] with
any offense against the laws of the State of Georgia;” (2) does not
form “the bases for a felony criminal offense and therefore cannot be
conduct amounting to a violation of [their] oath of office;” and (3)
“fails to set forth any description of the way the alleged conduct of
the accused. . . violates the United States Constitution as
interpreted by the U.S. Supreme Court in Brady v. Maryland.”
Powell and Scott also asserted that the oath-of-office statute, OCGA
§ 16-10-1, was “unconstitutionally vague” as applied to the facts of
this case.
At the hearing on the general demurrers, Powell and Scott
OCGA § 17-7-170. The special demurrers were denied by the trial court and
are not before us on appeal. As for the speedy-trial demands, in October 2022,
Powell and Scott filed motions to dismiss the indictment, seeking to be
discharged and acquitted of all charges because they were not tried during the
September 2021 term of court or the next term of court, which began in March
2022 and ended in September 2022. In November 2022, the trial court held a
hearing on the motions to dismiss and subsequently denied the motions. In
denying the motions, the trial court determined, among other findings, that
Powell and Scott failed to serve the assigned judge with their speedy-trial
demands and that OCGA § 17-7-170 (a) “specifically requires a defendant [to]
serve his speedy-trial demand on both the prosecutor and the judge to whom
the case is assigned.” The trial court concluded that, “[b]ecause Powell and
Scott failed to strictly comply with the statute, they made no demand for
speedy trial,” and their motions should be denied.
6
argued that the indictment should be dismissed because they could
admit all the facts alleged therein and not be guilty of any crimes.
To that end, Powell and Scott again argued that the indictment fails
to allege any facts constituting a crime; fails to allege any conduct
amounting to a Brady violation; and fails to identify a particular
case or a particular defendant whose case has been affected by a
Brady violation or whose federal constitutional rights have been
violated. The State argued that “[t]here were numerous cases of
people denied their liberty” or “denied their life” by the acts and/or
omissions of Powell and Scott, but the State did not identify any such
cases. In response, Powell and Scott reiterated that the State had
failed to specify any pending criminal cases that had allegedly been
impacted by a Brady violation on their part, and they argued that
their federal due process rights would be violated if the State was
allowed “to stray from the terms of the indictment” by prosecuting
them based upon cases, actions, or incidents that were not included
in the indictment.
The trial court denied the general demurrers, concluding that,
7
if Powell and Scott were to admit the allegations in the indictment,
the “admission of these allegations would constitute conduct
violative of the oaths of office taken by [Powell and Scott]” and
further determining that, even if “the underlying conduct charged
was not per se criminal under Georgia law, . . . the conduct alleged,
if proven true, would constitute conduct not only grossly
inconsistent with that imposed upon [Powell and Scott] by their
oaths, but also going to the very heart of the obligations they
assumed when they took their oaths.” 4
2. We review a trial court’s ruling on a general demurrer “de
novo in order to determine whether the allegations in the indictment
are legally sufficient.” State v. Mondor, 306 Ga. 338, 341 (1) (830
4 Citing Poole v. State, 262 Ga. 718, 719 (425 SE2d 655) (1993), the trial
court also concluded that OCGA § 16-10-1 was “not unconstitutionally vague
as applied to Powell and Scott” and denied their general demurrers on this
additional ground. Powell and Scott appealed the trial court’s ruling—
including the trial court’s conclusion that OCGA § 16-10-1 was not
unconstitutionally vague as applied to the facts of this case—to the Court of
Appeals. In their appeals, Powell and Scott also sought review of the trial
court’s denial of their motions to dismiss the indictment on speedy-trial
grounds. After observing that these appeals invoked our Court’s constitutional
question jurisdiction, the Court of Appeals transferred the appeals to this
Court in October 2023.
8
SE2d 206) (2019) (citation and punctuation omitted). Having done
so, we agree with Powell and Scott that the trial court’s ruling
regarding the sufficiency of the indictment was erroneous, and their
general demurrers should have been granted.
“As a general matter, a demurrer (whether general or special)
must allege some flaw on the face of the indictment itself,” and “a
court cannot go beyond the four corners of the indictment in
considering a demurrer.” State v. Williams, 306 Ga. 50, 53 (2) (829
SE2d 117) (2019). See also Bullard v. State, 307 Ga. 482, 486 (2) n.5
(837 SE2d 348) (2019) (noting that “the trial court could not look
beyond the four corners of the indictment in considering [the
defendant’s] demurrer”).
To assess the merits of a general demurrer, which
challenges the sufficiency of the substance of the
indictment, a court asks whether the defendant can admit
each and every fact alleged in the indictment and still be
innocent of any crime. If so, the general demurrer should
be sustained. But if the admission of the facts alleged
would lead necessarily to the conclusion that the accused
is guilty of a crime, the indictment is sufficient to
withstand a general demurrer.
Williams, 306 Ga. at 52 (2) (citation and punctuation omitted;
9
emphasis in original). Framed another way, this Court has held
that, if an indictment “recite[s] the language of the statute that sets
out all the elements of the offense charged or allege[s] the facts
necessary to establish a violation of a criminal statute, then the
indictment is sufficient to withstand a general demurrer.” Mondor,
306 Ga. at 341 (1) (citing Jackson v. State, 301 Ga. 137, 141 (1) (800
SE2d 356) (2017)).
Here, the indictment lays out the elements of the statutorilydefined crime of violation of oath of office by a public officer. See
OCGA § 16-10-1 (“[a]ny public officer who willfully and intentionally
violates the terms of his oath as prescribed by law shall, upon
conviction thereof, be punished by imprisonment for not less than
one nor more than five years.”). The indictment also specifies which
term of the oath of office Powell and Scott allegedly violated—their
obligation “to uphold the Constitution of the United States”—and
which specific provision thereof—Article VII, Amendment V of the
United States Constitution as interpreted by the United States
Supreme Court in Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10
10
LE2d 215) (1963). As such, the indictment satisfies the general
demurrer standard as set forth in Mondor and Jackson insofar as it
“recite[s] the language of the statute that sets out all the elements
of the offense charged.” Mondor, 306 Ga. at 341 (1). See also
Jackson, 301 Ga. at 139 (1) (“[T]o withstand a general demurrer, an
indictment must . . . recite the language of the statute that sets out
all the elements of the offense charged[.]”).
However, under these circumstances, if the indictment here
only recited “the language of the statute that sets out all the
elements of the offense charged”—and therefore satisfied the
general demurrer standard, Mondor, 306 Ga. at 341 (1)—the
indictment would not be sufficient to withstand a special demurrer,
which “challenges the sufficiency of the form of the indictment.”
Kimbrough v. State, 300 Ga. 878, 880 (2) (799 SE2d 229) (2017)
(citation and punctuation omitted; emphasis in original). “By filing
a special demurrer, the accused claims . . . that the accused is
entitled to more information.” Id. at 880-881 (2) (citation and
punctuation omitted). When considering an indictment under a
11
special demurrer challenge,
[w]e have held that an indictment not only must state the
essential elements of the offense charged, but it also must
allege the underlying facts with enough detail
to sufficiently apprise the defendant of what he must be
prepared to meet. As we have explained, when a court
considers whether an indictment is sufficient to
withstand a special demurrer, it is useful to remember
that a purpose of the indictment is to allow a defendant
to prepare her defense intelligently.
Id. at 881 (2) (citations and punctation omitted; emphasis supplied).5
Applying those principles here, the indictment at issue charges
Powell and Scott with “willfully and intentionally” violating the
terms of their oath of office under OCGA § 16-10-1 by failing to
uphold the due process clause of the United States Constitution as
interpreted by Brady. Brady stands for the proposition that “the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
5 Here, it appears that the State reindicted Powell and Scott after the
trial court granted special demurrers on the first indictment for a lack of
sufficient underlying facts, resulting in the indictment presently at issue. The
first indictment is not part of the record in this case; however, the procedural
history of that indictment was referenced at the general demurrer hearing in
January 2022.
12
either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady, 373 U.S. at 87. This Court has
explained that Brady “does not require the pre-trial disclosure of
exculpatory evidence,” Davis v. State, 261 Ga. 382, 385 (8) (b) (405
SE2d 648) (1991) (citation omitted; emphasis supplied), and does not
impose a duty upon the State to investigate. See Brown v. State, 250
Ga. 66, 74 (6) (295 SE2d 727) (1982); Hines v. State, 249 Ga. 257,
258-259 (1) (290 SE2d 911) (1982); Baker v. State, 245 Ga. 657, 661-662 (3) (266 SE2d 477) (1980); Rini v. State, 236 Ga. 715, 718 (4)
(225 SE2d 234) (1976); Hicks v. State, 232 Ga. 393, 394-395 (207
SE2d 30) (1974). We have held that, for a criminal defendant to
establish a Brady violation, the following four factors must be met:
(1) the State possessed evidence favorable to [the
accused’s] defense; (2) [the accused] did not possess the
favorable evidence and could not obtain it himself with
any reasonable diligence; (3) the State suppressed the
favorable evidence; and (4) had the evidence been
disclosed to the defense, a reasonable probability exists
that the outcome of the trial would have been different.
Davis v. State, 316 Ga. 418, 425 (4) (c) (888 SE2d 546) (2023)
(citation and punctuation omitted).
13
As explained above, to withstand a general demurrer in this
case, the State was not required to allege any additional facts in the
indictment beyond the statutory elements of OCGA § 16-10-1, but
the State generally must allege additional facts to survive a special
demurrer. Here, the State alleged additional facts, but those facts—
namely, that Powell and/or Scott violated the terms of their oaths of
office by committing Brady violations through their failures to
investigate and undertake the administrative actions alleged in
Count 1 through 4 of the indictment—are inconsistent with the
criminal statute as pleaded and negate the manner in which Powell
and Scott purportedly violated the terms of their oaths of office. In
other words, here, the indictment alleges that Powell and Scott
committed these crimes in a specific way. If Powell and Scott admit
to that, they are still innocent of the alleged crimes because it is
legally impossible to commit the crimes in the way the State alleged
in the indictment.
When we review the sufficiency of an indictment, “we read the
indictment as a whole.” Sanders v. State, 313 Ga. 191, 196 (3) (a)
14
(ii) (869 SE2d 411) (2022). We most often rely on this principle to
uphold an indictment where one count does not include sufficient
details, but those details are provided in other counts of the
indictment. See id. (determining that an indictment survived a
demurrer because, although the conspiracy count of the indictment
failed to identify a co-conspirator or overt act in furtherance of the
conspiracy, “the alleged deficiencies [were] addressed” in another
count of the indictment). See also State v. Wyatt, 296 Ga. 257, 260-261 (1) (b) (759 SE2d 500) (2014) (observing that “[w]e will consider
each felony murder count and its underlying felony count together,
and examine whether the entirety of the indictment provides
sufficient detail about the crimes [the defendant] is accused of
committing” so as to put the defendant on notice of what he will have
to defend against at trial). However, here, this principle leads us to
conclude that, where the details provided in each count actually
negate the elements of the crimes charged, the indictment is not
sufficient to withstand a general demurrer because Powell and Scott
“can admit each and every fact alleged in the indictment and still be
15
innocent of” the crimes alleged by the State. Williams, 306 Ga. at
52 (2). And, although we have not articulated this specific rule
before, it is consistent with our case law.
Accordingly, in this case—even assuming (without deciding)
that a Brady violation could form the basis of a violation of oath of
office charge—the facts as alleged in this indictment do not support
such a charge because Powell’s and Scott’s purported failures to
investigate and undertake the administrative actions alleged in
Counts 1 through 4 of the indictment are not Brady violations. 6 See
Davis, 261 Ga. at 385 (8) (b). See also Mondor, 306 Ga. at 341 (1).
We thus conclude that the indictment against Powell and Scott
“cannot withstand a general demurrer,” Mondor, 306 Ga. at 341 (1)
(citation and punctuation omitted), and therefore, the trial court’s
denial of Powell’s and Scott’s general demurrers to the indictment is
6 Although we must accept all factual allegations as true, the State’s
allegations that this conduct violated Brady are conclusions of law, which we
are not required to accept. See Wyatt, 295 Ga. at 267-268 (3) (“[I]n reviewing
demurrers, the allegations in the indictment are taken as true[.]”) (citing Lowe
v. State, 276 Ga. 538, 539 (579 SE2d 728) (2003) (explaining that the court
must take the allegations in the indictment as true when evaluating a
demurrer)).
16
reversed. And, because we have concluded that this indictment
cannot withstand a general demurrer, we need not reach Powell’s
and Scott’s constitutional challenge or the speedy-trial issue also
before us on appeal. 7
Judgment reversed. All the Justices concur.
7 See Cottrell v. Smith, 299 Ga. 517, 520 (I) (A) (788 SE2d 772) (2016)
(“[I]t is well-settled that this Court will not decide a constitutional question if the decision in the appeal can be made on other grounds.”) (citing Deal v.
Coleman, 294 Ga, 170, 171 n.7 (751 SE2d 337) (2013)).
17