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Final Copy 290 Ga. 763

S11A1875, S11X1876. THE STATE v. DEMPSEY; and vice versa.

HINES, Justice. In Case Number S11A1875, the State appeals the trial court's order granting Lewis Dempsey's motion to quash indictment number 10-CR-003-DB. In Case Number S11X1876, Dempsey cross-appeals the trial court's earlier denial of his motion to quash indictment number 09-CR-325-MM. For the reasons that follow, we affirm in S11A1875, and reverse in S11X1876. After a longstanding property dispute between Dempsey and Dillard Jewell Crane, Dempsey fatally shot Crane on September 7, 2009; Dempsey admitted the shooting, but claimed self-defense. On November 10, 2009, during the August 2009 term of the Lumpkin County grand jury, indictment number 09CR-325-MM ("first indictment") was returned, charging Dempsey with malice murder, felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony. On December 17, 2009, Dempsey moved to quash this indictment because those persons who had been summoned
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for the August 2009 term of the Lumpkin County grand jury included Ralph Prescott, an elected member of the City Council of Dahlonega, who not only sat on the grand jury, but served as its foreman. In an order of January 4, 2010, the trial court denied Dempsey's motion to quash, but nonetheless ordered Prescott removed from future service on the grand jury. The next day, January 5, 2010, the State sought to indict Dempsey for the same crimes; the grand jury, composed as before, but without Prescott and one other absent juror, returned indictment number 10-CR-003-DB ("second indictment"). The State also moved for an order of nolle prosequi as to the first indictment, which was granted on January 14, 2010. Dempsey then moved to quash the second indictment, which was granted. 1. In the cross-appeal, Dempsey contends that the trial court should have granted his motion to quash the first indictment. That is correct. As an elected local government officeholder, Prescott was ineligible to serve on a grand jury under OCGA

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Georgia Law