                             SECOND DIVISION
                               MILLER, P. J.,
                          DOYLE, P. J., and REESE, J.

                    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


                                                                   February 26, 2018




In the Court of Appeals of Georgia
 A17A2127. THE STATE v. SCOTT.                                                DO-070

      DOYLE, Judge.

      Anthony James Scott, a former Georgia State Patrol (“GSP”) trooper, was

indicted by the Grand Jury of Carroll County for misdemeanor reckless driving1 and

speeding2 after he was involved in a collision while in the performance of his duties.

Scott moved to quash the indictment and dismiss the charges, arguing that his rights

under Garrity v. New Jersey3 were violated when the State introduced during the

grand jury proceedings a summary of some of his statements made to a GSP officer




      1
          OCGA § 40-6-390 (a).
      2
          OCGA § 40-6-181 (b).
      3
          385 U. S. 493 (87 SCt 616, 17 LE2d 562) (1967).
during an inter-departmental review following the collision. The trial court granted

the motion, and the State appeals. For the reasons that follow, we reverse.

       When considering an appeal of a trial court’s order on a motion to dismiss

and/or quash an indictment, “[w]e review the trial court’s interpretations of law and

application of the law to the facts de novo and its findings of fact for clear error.”4

       So viewed, the record shows that on September 26, 2015, Scott was on duty in

his patrol car when he collided with another vehicle; two of the four people in the

other car died as a result of their injuries, and the other two sustained serious injuries.

On September 30, 2015, Scott gave a recorded statement to GSP Sergeant Chad

Barrow regarding the collision.5




       4
       (Punctuation omitted.) State v. Peabody, 343 Ga. App. 362, 363 (807 SE2d
107) (2017), quoting Yancey v. State, 342 Ga. App. 294 (802 SE2d 702) (2017).
       5
        On the written form signed by Scott in connection with the interview, the
portion indicating that he had been advised of his Miranda rights was crossed out. In
another section titled “QUESTIONS AT END OF STATEMENT,” the following
questions, among others, were crossed out: “Have any threats or promises been made
during this interview?” and “At any time did you request an attorney?” Scott
acknowledged on the form that “[his] statement has been made freely, voluntarily[,]
and without threats or promises of any kind.”

                                            2
      Thereafter, the State presented evidence before the grand jury seeking an

indictment charging Scott with reckless driving and speeding.6 Sergeant Barrow

testified, and he identified and the State introduced diagrams of the scene of the

collision, which included speed limit signs. The State also introduced the video taken

from Scott’s dashboard camera, which showed Scott’s approach to the intersection

and the impact. Barrow estimated Scott’s speed five seconds before the impact, two

seconds before the impact, and at the time of impact, which speeds were calculated

using data from the air bag in Scott’s patrol car and the video. Barrow also testified

about his interview of Scott, summarizing Scott’s statements to him about the

incident, including the events prior to the collision. At the conclusion of the

proceedings, the grand jury returned an indictment against Scott charging him with

misdemeanor reckless driving and speeding.

      Scott filed a motion to dismiss and quash the indictment, alleging that because

Georgia Department of Public Safety (“DPS”) procedures required him to participate


      6
        The State previously sought an indictment against Scott for two counts of
homicide by vehicle in the first degree, two counts of serious injury by vehicle, and
one count of violation of oath of public office; the grand jury declined to indict Scott
on those charges. The State then sought an indictment against Scott solely for
violation of oath of public office, and the grand jury again returned a no bill of
indictment.

                                           3
in the interview with Barrow, because he was not advised of his Miranda rights, and

because he was not advised that the statements he provided were covered by Garrity,

the State’s introduction of his statements at the grand jury proceedings violated his

rights under Garrity. At the hearing, the State conceded that it could not introduce

Scott’s statements at trial, but argued that the introduction of his statements in the

grand jury proceeding did not require dismissal of the indictment. Following a

hearing, the trial court granted Scott’s motion, finding that his statements to police

were not voluntary. The State appeals, arguing that the trial court erred by granting

Scott’s motion to quash. We agree.

      In Garrity, the United States Supreme Court held that statements obtained

under the threat of removal from government employment or office cannot be used

“in subsequent criminal proceedings.”7 In Georgia, courts apply a totality-of-the-

circumstances test to determine whether statements made by a public employee

during an investigation into his activities are voluntary.8

      7
          Garrity, 385 U. S. at 500.
      8
         See State v. Aiken, 282 Ga. 132, 135 (2) (646 SE2d 222) (2007). The
“[f]actors that a court may consider include . . . whether the State actor made an overt
threat to the defendant of the loss of his job if he did not speak with investigators or
whether a statute, rule, or ordinance of which the defendant was aware provided that
the defendant would lose his job for failing to answer questions. If no express threat

                                           4
      Here, the State concedes that it could not use any of the evidence obtained

during the interview of Scott by Barrow and two other troopers at the trial in this

case, agreeing that the interviewers violated their own DPS policies as well as the

protections set forth in Garrity. Thus, the sole issue before this Court is whether the

State’s introduction of Scott’s statements during the grand jury proceedings requires

dismissal of the indictment.

      The State maintains that grand jury proceedings are not “criminal proceedings”

contemplated by Garrity. But we need not decide that issue because there was

additional evidence admitted before the grand jury to support the indictment.




is present, the court may examine whether the defendant subjectively believed that
he could lose his job for failing to cooperate and whether, if so, that belief was
reasonable given the State action involved. In determining whether the defendant’s
belief was objectively reasonable, the court may examine whether the defendant was
aware of any statutes, ordinances, manuals, or policies that required cooperation and
provided generally, without specifying a penalty, that an employee could be subject
to discipline for failing to cooperate. The court may also consider whether the
investigator implicitly communicated any threat of dismissal either in written or oral
form; whether, before the interrogation began, the defendant was told he was free to
leave at any time; and whether the defendant was told he had the right to have a
lawyer present. A trial court, of course, is free to consider any other factor that it
determines is relevant to the determination of voluntariness.” Id. at 135-136 (2).

                                          5
      “Dismissal of an indictment and suppression of evidence are extreme sanctions,

used only sparingly as remedies for unlawful government conduct.”9 “[A] defendant

. . . seeking to quash an indictment has the burden to overcome the presumption that

it was returned on legal evidence by showing there was no competent evidence upon

which it could lawfully have been returned. . . .”10 “The sufficiency of the legal

evidence before the grand jury will not be inquired into.”11

      Here, in addition to Barrow’s testimony regarding Scott’s statements during the

interview, the State also introduced the videotape of Scott’s approach to the

intersection where the collision occurred and the impact, a diagram of the

intersection, and testimony estimating Scott’s speed at the time immediately before




      9
          State v. Lampl, 296 Ga. 892, 896 (2) (770 SE2d 629) (2015).
      10
           Whitehead v. State, 126 Ga. App. 570 (1) (191 SE2d 336) (1972).
      11
           Id. at 571 (2).

                                          6
and at impact. Thus, “[Scott] has not carried his burden of showing that the evidence

on which the indictment was returned was based on wholly incompetent evidence.”12

      Judgment reversed. Miller, P. J., and Reese, J., concur.




      12
         Id. See also Thomas v. State, 331 Ga. App. 641, 656 (5) (771 SE2d 255)
(2015) (affirming the denial of a plea in abatement challenging the indictment
because the defendant failed to show that the objected-to “statements were the only
evidence presented to the grand jury”); Williams v. State, 244 Ga. App. 26, 27 (1)
(535 SE2d 8) (2000) (rejecting the defendant’s argument that the indictment should
have been quashed due to insufficient evidence because the defendant “provided . .
. no proof whatsoever that the indictment against her was based on wholly illegal
evidence”).

                                         7
