State v. Abernathy, 295 Ga. 816

Samuel Abernathy was convicted of malice murder (Jan. 2008 stabbing) and sentenced to life; he filed timely motions for new trial and an extraordinary motion alleging newly discovered evidence.
On first appeal this Court reversed the trial court’s grant of a new trial for ineffective assistance, affirmed denial of other ordinary-motion grounds, and remanded for consideration of the extraordinary motion (State v. Abernathy).
The extraordinary motion relied on notes from John Geren’s first attorney (made available after Geren waived privilege) showing Geren allegedly told his attorney that the victim said, “I’m going to kill both of you faggots” before the stabbing—contradicting Geren’s earlier statements to police and his trial testimony.
Abernathy argued those notes constituted newly discovered evidence that would support a new trial because they undermined the State’s theory and supported his self-defense claim.
The trial court granted the extraordinary motion; the State appealed (S14A0855) and Abernathy cross-appealed additional claims (S14X0856).
The Supreme Court of Georgia reversed the grant of the extraordinary motion and affirmed the denial of Abernathy’s cross-appeal claims as foreclosed by the prior appellate ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an extraordinary new-trial motion may be granted based on attorney notes showing a witness previously made inconsistent statements	Abernathy: notes are newly discovered evidence undermining Geren’s trial testimony and supporting self-defense, so a new trial is warranted	State: notes only impeach witness credibility; impeachment-only evidence cannot, as a matter of law, justify an extraordinary new trial	Reversed — evidence here is impeachment only; Georgia law bars extraordinary new trials based solely on impeachment of a witness’s credibility
Whether trial-court should consider additional cross-appeal claims (ineffective assistance due to conflict; denial of public trial) after remand	Abernathy: raised these additional claims on remand and argues the trial court erred in rejecting them	State: prior Supreme Court decision resolved these issues; lower court is bound by that decision and may not relitigate them	Affirmed — the claims were previously rejected on direct appeal; res judicata/mandate rule prevents new contrary rulings

Timberlake v. State, 246 Ga. 488 (establishes six-factor test for newly discovered evidence/new trial)
Crowe v. State, 265 Ga. 582 (explains stricter rule for extraordinary motions for new trial)
Davis v. State, 283 Ga. 438 (addresses when newly available evidence is merely impeaching and insufficient for extraordinary new trial)
Drake v. State, 248 Ga. 891 (holds impeachment-only evidence cannot alone support new trial)
Fugitt v. State, 251 Ga. 451 (example where extrinsic evidence made trial testimony physically impossible, justifying new trial)
Peppers v. State, 242 Ga. App. 416 (explains the type of evidence that removes credibility issues and may justify new trial)
State v. Abernathy, 289 Ga. 603 (prior Supreme Court decision reversing grant of ordinary new trial and remanding for consideration of extraordinary motion)