Jerry Galloway, a Macon police officer, was indicted on two counts of rape, two counts of sexual assault against a person in custody and two counts of violating his oath as a public officer. Galloway moved to quash the indictment on the ground that he had been denied access to the grand jury as provided by OCGA § § 17-7-52 and 45-11-4. The trial court granted the motion. The state appeals, asserting that the trial court erred in quashing the indictment. We agree and reverse the trial court’s ruling. OCGA § 17-7-52 a provides: Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4.1 The rights afforded an officer by OCGA § 45-11-4 include the right to be present with counsel during the state’s presentation of evidence to the grand jury and, at the conclusion of the state’s evidence, the right to make a statement without being subject to direct or cross-examination.2 These rights have been found to apply where prison officers were charged with involuntary manslaughter for confining a prisoner under conditions which caused his death by heat prostration,3 and where a police officer on duty was charged with speeding and failing to reduce his speed when approaching an intersection.4
However, these rights have been found not to apply to situations where officers have stepped aside from the performance of their official duties in order to commit crimes. For instance, we have held that officers charged with committing burglary, armed robbery and aggravated assault while on duty are not entitled to these rights inasmuch as the performance of their official duties does not include the commission of such crimes.5 Likewise, this court has held that the performance of official duties does not include rape.6
