Williams v. State

FINAL COPY

                S19G0125. WILLIAMS v. THE STATE.


      BLACKWELL, Justice.

      On January 23, 2013, the police searched Keith Williams’s

residence and seized several computers and disk drives containing

digital images of child pornography. A Gwinnett County grand jury

indicted Williams on 48 counts of sexual exploitation of children

under OCGA § 16-12-100 (b) (8).1 All counts in the indictment

alleged that, on the day of the search, Williams “did knowingly

possess and control a photographic image depicting a minor engaged

in sexually explicit conduct.” Each count separately described a

different image possessed by Williams.

      Before trial, Williams filed a “Motion to Dismiss Counts 2

through 48 of the Indictment” on the ground that these counts were




      1 The statute provides: “It is unlawful for any person knowingly to
possess or control any material which depicts a minor or a portion of a minor’s
body engaged in any sexually explicit conduct.” OCGA § 16-12-100 (b) (8).
“multiplicitous” because they all arose from a single criminal act.

According to Williams, the simultaneous possession of multiple

illicit images in a single location constitutes only one offense under

OCGA § 16-12-100 (b) (8). Thus, Williams argued, the indictment

subjected him to multiple punishments for the same offense, thereby

exposing him to double jeopardy in violation of the United States

Constitution, the Georgia Constitution, and statutory law.2 After a

hearing, the trial court agreed with Williams, granted his motion to

dismiss, and ordered the State to consolidate all 48 counts in the

indictment into a single count. The State appealed,3 and the Court


      2 See U. S. Const. Amend. V (no person shall be “subject for the same

offence to be twice put in jeopardy of life or limb”); Ga. Const. of 1983, Art. I,
Sec. I, Par. XVIII (“No person shall be put in jeopardy of life or liberty more
than once for the same offense except when a new trial has been granted after
conviction or in case of mistrial.”); OCGA § 16-1-7 (setting forth the
circumstances under which the accused may be prosecuted or convicted
separately for multiple crimes arising out of the same conduct); OCGA § 16-1-
8 (setting forth the effects of a “former prosecution”).

      3 In criminal cases, the State is allowed to appeal only from certain
specified orders, including orders “setting aside or dismissing any
indictment . . . or any count thereof[.]” OCGA § 5-7-1 (a) (1). The trial court’s
order states: “[T]he Court hereby GRANTS Defendant’s Motion [to Dismiss]
and orders that the state consolidate the counts in the indictment into one
single count. Should the state fail to so consolidate, the Court may dismiss
counts 2-48 of the indictment.” (Emphasis supplied.) Although this order

                                        2
of Appeals reversed, holding that OCGA § 16-12-100 (b) (8) allows “a

charge and conviction on each and every image possessed.” State v.

Williams, 

 (

) (2018). We

granted certiorari and now affirm the Court of Appeals’s decision,

but for an entirely different reason. We hold that, regardless of the

merit of Williams’s multiplicity claim, the trial court was not

authorized to dismiss Counts 2 through 48 of his indictment at the

pretrial stage of the proceedings.

     1. The trial court’s dismissal order was premised on the notion

that the alleged multiplicity of Williams’s indictment violated his

right not to be exposed to double jeopardy. The doctrine of double

jeopardy has two components: the “procedural” bar on double

jeopardy, which places limitations on “multiple prosecutions for

crimes arising from the same conduct,” and the “substantive” bar,



contains conditional language — “may dismiss” — we construe this order as a
de facto dismissal of 47 separate counts of the indictment. The order
unambiguously “grants” Williams’s motion to dismiss. The additional language
about consolidation and potential dismissal, in our view, was simply meant to
give the State an opportunity to amend Count 1 of the indictment to include
all of the separate illicit images specified in the other counts.

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which protects against “multiple convictions or punishments” for

such crimes. Stephens v. Hopper, 

 (1) (

) (1978); Keener v. State, 

 (

) (1976). See

also Carman v. State, 

 (2) n.3 (

) (2018).

When a court is “presented with the question of whether a single

course of conduct can result in multiple convictions and sentences

under the same statute, the doctrine of substantive double jeopardy

is implicated, and the ‘unit of prosecution,’ or the precise act

criminalized by the statute, must be identified.” Coates v. State, 

 (

) (2018). See also State v. Marlowe, 

 (1) (

) (2003) (“The question of multiple

punishments (as opposed to multiple prosecutions) for the same

criminal conduct is addressed under the rubric of substantive double

jeopardy.” (Emphasis in original)).

     Williams argues that his multiplicity claim invokes the

procedural aspect of double jeopardy, but this clearly is not the case.

Procedural protections against double jeopardy apply only to

“multiple prosecutions,” meaning multiple or successive indictments

                                  4
or criminal proceedings. See Stephens, 

 (1). These

procedural protections do not apply to a single indictment that

contains multiple counts, even if those counts are deemed

multiplicitous. See Prater v. State, 

 (4) (

) (2001) (“[P]rocedural Double Jeopardy protections . . . forbid the

State from prosecuting in a second action crimes that were omitted

from the first prosecution.”); Keener, 

 (the procedural

aspect of double jeopardy refers to the bar on “successive

prosecutions,” and its rationale is “to prevent harassment of the

accused”). See also United States v. Rosenthal, 793 F2d 1214, 1234

(11th Cir. 1986) (a defendant “is subjected to multiple prosecutions

in violation of the double jeopardy clause” where “a single offense is

charged in separate charging instruments” (emphasis supplied)).

Because Williams is not faced with multiple or successive

prosecutions, the procedural bar on double jeopardy does not apply.4


     4 Indeed, the U. S. Supreme Court has squarely rejected an argument

that a single indictment with multiple counts can be characterized as multiple
prosecutions for federal double jeopardy purposes. See Ohio v. Johnson, 

 (

, 81 LE2d 425) (1984) (holding that defendant’s

                                      5
Rather, to the extent double jeopardy provisions apply at all,

Williams’s claim must be analyzed under the rubric of substantive

double jeopardy, which prohibits multiple punishments for the same

offense. See Coates, 

; Marlowe, 

 (1).

      The substantive bar on double jeopardy, however, is of no help

to Williams at this stage of the proceedings because he has not yet

been convicted and sentenced on any of the counts that he claims

are multiplicitous. We have made clear that the doctrine of

substantive double jeopardy — concerned as it is with multiple

convictions and sentences — does not come into play until after the

defendant has been found guilty on multiplicitous counts. See

Keener, 

 (where “several crimes arising out of one

criminal transaction are tried at the same time,” the bar against

multiple convictions “does not operate until after the verdicts”). See

also Perkins v. State, 

 (1) (

) (2005)

(addressing a procedural double jeopardy issue in a pretrial appeal


plea of guilty to two counts of a multiple-count indictment did not prevent the
state from prosecuting the remaining counts, as all counts “were embraced
within a single prosecution”).
                                      6
and stating that “[a]ny issues of substantive double jeopardy that

may arise if [defendant] is convicted in superior court are not

properly before us today”); State v. Boyer, 

 (2)

(

) (1999) (explaining that, just because a defendant

“may not be sentenced for more than one crime based on the same

criminal act does not mean that the State must choose to charge her

with only a single crime” (emphasis in original)).

     The   post-trial   nature   of   substantive    double   jeopardy

protections is further evidenced by our longstanding practice of

“merger,” in which courts merge multiple counts into one for

sentencing purposes. As we recently explained, “merger” applies

generally to “situations in which a defendant is prosecuted for and

determined by trial or plea to be guilty of multiple criminal charges

but then, as a matter of substantive double jeopardy law, can be

punished — convicted and sentenced — for only one of those crimes.”

Scott v. State, 

 (2) (

) (2019). We routinely

resolve merger issues on direct appeal, after the defendant’s

conviction and sentencing. See, e.g., Donaldson v. State, 

 (4) (

) (2017) (the “two aggravated assault

counts,” which were based on a single shooting incident, “both

should have merged into felony murder for sentencing purposes”);

Nazario v. State, 

 (3) (d) (

) (2013)

(holding that defendant’s five convictions for concealing the death of

another “merged into one” because defendant’s course of conduct

constituted only one violation of the applicable statute). Because the

substantive bar on double jeopardy applies only after the defendant

is found guilty, it does not warrant the pretrial dismissal of the

charges against Williams, even if those charges are multiplicitous.5


     5 Williams insists that a multiplicitous indictment causes harm before

conviction and sentencing because, first, it exaggerates the scope and gravity
of the alleged criminal activity in the eyes of the jury, see United States v.
Smith, 

 (III) (C) (11th Cir. 2000) (“[A] multiplicitous
indictment may improperly prejudice a jury by suggesting that a defendant
has committed several crimes—not one.”), and second, it may induce the jury
to reach an unwarranted compromise and acquit on less than all counts despite
lingering doubt. But Williams does not cite any Georgia authority that would
allow pretrial dismissal of charges based on those concerns. In fact, such
concerns are present in every case in which the prosecution charges several
distinct counts based on the same criminal conduct and where one or more of
those counts are subject to merger for sentencing purposes. Were we to allow
a pretrial dismissal of multiplicitous charges based on those concerns, our
decision would contradict not only Georgia’s longstanding practice of merger
at the sentencing phase, but also the applicable double jeopardy provisions of
the Georgia Code. See OCGA § 16-1-7 (a) (when “the same conduct of an

                                      8
     Williams relies heavily on the United States Supreme Court’s

decision in United States v. Universal C. I. T. Credit Corp., 

 (

, 

) (1952), which involves a pretrial

“unit of prosecution” analysis. This case, he contends, refutes any

suggestion that the trial court lacked authority to consolidate or

dismiss the multiplicitous charges. But Universal C. I. T. is

inapposite because it is fundamentally about the statutory

interpretation of the federal Fair Labor Standards Act; nowhere

does it suggest that the Double Jeopardy Clause prohibits a trial on

a multiplicitous indictment. See 

 (“All we now decide is that

the district judge correctly held that a single course of conduct does

not constitute more than one offense under § 15 of the Fair Labor

Standards Act.”). Indeed, the Supreme Court observed that “a



accused may establish the commission of more than one crime, the accused
may be prosecuted for each crime[,]” but may not be “convicted of more than
one crime” under certain circumstances (emphasis supplied)); OCGA § 16-1-7
(b) (“If the several crimes arising from the same conduct are known to the
proper prosecuting officer at the time of commencing the prosecution and are
within the jurisdiction of a single court, they must be prosecuted in a single
prosecution . . . .” (emphasis supplied)).


                                      9
draftsman of an indictment may charge crime in a variety of forms

to avoid fatal variance of the evidence” and “may cast the indictment

in several counts whether the body of facts upon which the

indictment is based gives rise to only one criminal offense or to more

than one.” Id. at 225. And, “by an indictment of multiple counts the

prosecutor gives the necessary notice and does not do the less so

because at the conclusion of the Government’s case the defendant

may insist that all the counts are merely variants of a single

offense.” Id. See also Ohio v. Johnson, 

 (

, 81 LE2d 425) (1984) (“While the Double Jeopardy Clause may

protect a defendant against cumulative punishments for convictions

on the same offense, the Clause does not prohibit the State from

prosecuting respondent for such multiple offenses in a single

prosecution.”).

     2. Williams also asserts that his motion to dismiss was in the

nature of a pretrial “special demurrer” which, he argues, is the

proper vehicle for challenging an indictment based on multiplicity.

We disagree. A special demurrer is a pretrial remedy that allows the

                                 10
defendant to challenge the form of the indictment (as opposed to its

substance) and to seek greater specificity or more information about

the charges. See Kimbrough v. State, 

 (2) (

) (2017) (“By filing a special demurrer, the accused claims

. . . that the charge is imperfect as to form or that the accused is

entitled to more information.” (Citation and punctuation omitted));

State v. Wyatt, 

 (2) (

) (2014) (a special

demurrer “challenges the specificity of the indictment”); Jones v.

State, 

 (2) (c) (

) (2011) (“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.”). See also

Kimbrough, 

 (2) n.12 (analogizing the special

demurrer to a “motion for a more definite statement” in civil cases).6



      6 By contrast, a general demurrer challenges the substance of the
indictment and asserts that the indictment is “fatally defective and incapable
of supporting a conviction.” Kimbrough, 

 (2) (citation and
punctuation omitted). A general demurrer would be warranted if the defendant
“could admit each and every fact alleged in the indictment and still be innocent
of any crime.” 

 (2). Williams does not contend that his indictment is

                                      11
      A special demurrer, with its demand for greater specificity,

may be used to address procedural double jeopardy concerns, given

that a vague or ambiguous charge, if carried through trial, may not

sufficiently inform the defendant of the specific crime of which he

was acquitted or convicted. See State v. English, 

(2) (a) (

) (2003) (to survive a special demurrer, an

indictment must lay out the charges in such a way that, “in case any

other proceedings are taken against [defendant] for a similar

offense,” the record would show “with accuracy to what extent he

may plead a former acquittal or conviction” (citation and

punctuation omitted)); Green v. State, 

 (

) (2013) (“The purpose of an indictment is to inform the accused

of the charges against him and to protect the accused against


subject to a general demurrer, and we believe any such claim would be
meritless. See 

 (“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.”). See also State v.
Mondor, 

 (1) (

) (2019) (an indictment is sufficient
to withstand a general demurrer if it “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 violation of a criminal statute” (citations and punctuation
omitted)).

                                        12
another prosecution for the same offense.” (Emphasis supplied.)). See

also Sanabria v. United States, 

 (II) (B) (

, 57 LE2d 43) (1978) (“[O]nce Congress has defined a statutory

offense by its prescription of the ‘allowable unit of prosecution,’ that

prescription determines the scope of protection afforded by a prior

conviction or acquittal.” (Citations omitted; emphasis supplied)).

      But we have never held that a special demurrer may be used

to address substantive double jeopardy concerns and obtain a

pretrial dismissal or consolidation of multiple counts simply to

prevent the possibility of multiple convictions and sentences for the

same offense. To the contrary, as discussed above, we have stated

that substantive double jeopardy protections do not come into play

until after trial and so cannot form the basis for the pretrial remedy

that Williams has sought.7 See Boyer, 

 (2);



      7 The only authority Williams cites for the proposition that a special

demurrer is the proper vehicle for deciding multiplicity claims is the Court of
Appeals’s decision in Christian v. State, 

 (2) (

) (2007), which states that “[i]f a defendant wants greater specificity with
regard to the time or circumstances of the alleged crime, or feels that the
indictment is defective as multiplicitous, her appropriate remedy is a pre-trial

                                      13
Keener, 

. See also State v. Tiraboschi, 

(

) (1998) (reversing grant of special demurrer

dismissing a felony murder charge because, “[a]lthough [defendant]

may not properly be sentenced for felony murder and vehicular

homicide, that does not prevent his trial on both charges”).8



special demurrer that challenges the form of the indictment.” (Emphasis
supplied.) This statement in Christian, however, is dicta and appears to be an
outlier. We are not aware of any of our decisions — or any pre-Christian
decisions of the Court of Appeals — that reflect this proposition. Indeed, the
only case that Christian cites in support of this proposition appears to hold the
exact opposite. See Martin v. State, 

 (10) (

)
(1988) (appellants failed properly to raise a challenge to a multiplicitous
indictment because they appealed “only the overruling of their [pretrial]
motions to quash the indictments,” whereas the “operative error here is in the
conviction and sentencing of [defendants] for the same conduct twice”
(emphasis in original)). Thus, to the extent Christian and its progeny (see State
v. Thomas, 

, 222 n.10 (

) (2015)) suggest that a
special demurrer may be used to challenge an otherwise “perfect” indictment
on grounds of substantive double jeopardy, they are disapproved.

      8 This is not to say categorically than no indictment characterized as

multiplicitous is ever subject to dismissal via a special demurrer. It is possible
that such an indictment may lack the requisite specificity. If, for instance, an
indictment contains multiple counts that are entirely identical, with nothing
to distinguish them from each other, the indictment would not inform the
defendant of what he should be prepared to meet or why the government chose
to use multiple identical counts rather than one. See State v. Meeks, 

 (2) (

) (2011) (affirming grant of special demurrer
on a count that was “entirely duplicative” of another count and provided “no
additional facts by which it [could] be distinguished from that count”); Smith
v. State, 

 (1) (

) (2006) (defendant could have
filed a special demurrer if he wanted “greater specificity” with regard to two

                                       14
      In this light, the Court of Appeals erred when it based its

decision on the merits of Williams’s multiplicity claim. In doing so

at this pretrial stage of the proceedings, the Court of Appeals

implied that a meritorious multiplicity claim would justify the

dismissal of Counts 2 through 48. This implication is erroneous, as

it effectively creates a new rule of criminal procedure — a rule that

allows pretrial dismissal of multiplicitous counts on the ground of

substantive double jeopardy. Such a rule is nowhere to be found in

the Georgia Code or in our own jurisprudence.9 Instead of addressing

Williams’s claim on the merits, the Court of Appeals should have

reversed the trial court’s order on the ground that the trial court

lacked authority to dismiss or consolidate Counts 2 through 48 of

Williams’s indictment before trial. Nevertheless, the underlying


counts that allegedly charged identical crimes and “were insufficiently
differentiated”). The motion to dismiss that Williams filed below, however, did
not assert that any of the counts in his indictment were insufficiently specific.

      9  We note that the Federal Rules of Criminal Procedure require a
defendant to raise a multiplicity claim in a pretrial motion “if the basis for the
motion is then reasonably available and the motion can be determined without
a trial on the merits.” Fed. R. Crim. P. 12 (b) (3). No such rule exists in Georgia.



                                        15
judgment of the Court of Appeals that reverses the trial court’s order

is correct, and we “will affirm the judgment of a lower court so long

as it is right for any reason, even if it is based upon erroneous

reasoning.” Shadix v. Carroll County, 

 (3) (c) (

) (2001).10

       Judgment affirmed. All the Justices concur.




                      DECIDED JANUARY 27, 2020.
       Certiorari to the Court of Appeals of Georgia — 

.
     L. David Wolfe, Bingzi Hu, for appellant.
     Daniel J. Porter, District Attorney, Samuel R. d’Entremont,
Assistant District Attorney, for appellee.




       10 We granted certiorari to answer a difficult question about the proper

unit of prosecution for possession of child pornography under OCGA § 16-12-
100 (b) (8). Because we conclude that this difficult question is not yet ripe for
resolution in this case, we have no occasion to answer it today. The Court of
Appeals also should not have attempted to resolve the question, and its opinion
in this case should not be relied on as precedent.
                                       16