796 S.E.2d 261 | Ga. | 2017
Amos Southall was tried by a Camden County jury and convicted of murder and another crime in connection with the killing of Michelle Hainley. Southall appeals, contending that he was denied due process when the prosecution failed to disclose evidence that a material witness hoped to benefit from his testimony against Southall. Upon our review of the record and briefs, we see no error, and we affirm.
1. “Although no party to this appeal disputes our jurisdiction, it is the duty of this Court to inquire into its jurisdiction in any case in which there may be a doubt about the existence of such jurisdiction.” State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan, 299 Ga. 392, 396 (2) (788 SE2d 455) (2016) (citations and punctuation omitted).
Nevertheless, it is settled that, even if a motion for new trial is premature, “this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal in the face of a timely notice of appeal from the order finally disposing of the motion.” Gomez-Oliva v. State, 312 Ga. App. 105, 106 (1) (717 SE2d 689) (2011) (citations and punctuation omitted). See also Lipscomb, 194 Ga. App. at 657 (1). Indeed, even though the premature motion for new trial in Harrison was considered “void,” this Court decided that “the appeal was filed within 30 days after the entry of the order finally disposing of the motion, and the appeal was timely filed under [OCGA § 5-6-38 (a)].” Harrison, 229 Ga. at 692 (1). Under that authority, Southall’s
In Harrison, however, this Court further held as follows: “Error is enumerated on the denial of the motion for new trial. Since the motion was void, there was no error in denying it.” 229 Ga. at 692 (2). The Court of Appeals reasonably has understood this holding to mean that an appellate court is required to automatically affirm as to claims of error that are premised on and directed only to a trial court’s denial of a prematurely filed motion for new trial. See Gomez-Oliva, 312 Ga. App. at 107 (1), n. 4; Dae v. Patterson, 295 Ga. App. 818, 819 (1) (673 SE2d 306) (2009); Lipscomb, 194 Ga. App. at 657 (1); Hill v. Bailey, 187 Ga. App. 413, 415 (2) (370 SE2d 520) (1988); Joiner v. Perkerson, 160 Ga. App. 343 (287 SE2d 327) (1981). If Harrison and its progeny were applied here, then Southall’s claim of error regarding the prosecution’s alleged failure to disclose evidence — regardless of whether that claim would have merit had the motion for new trial been timely filed — would not require reversal on appeal because the claim was raised only in the premature motion for new trial.
Upon closer examination of this issue, however, we have determined that Division 2 of Harrison was incorrectly decided. The timing of a motion for new trial is governedby OCGA § 5-5-40 (a): “All motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.”
This Court’s reasoning in Gillen applies equally to premature motions for new trial. Not only is the wording of OCGA § 5-5-40 (a) very similar in relevant part to that of OCGA § 5-6-38 (a), but treating a premature motion for new trial (like a premature notice of appeal) as effectively filed upon entry of judgment prevents the loss of valuable rights when the validity of the motion “is challenged not because something was done too late, but rather because it was done too soon.” Gillen, 234 Ga. at 310 (1). See also Livingston v. State, 221 Ga. App. 563, 566 (1) (472 SE2d 317) (1996) (a whole-court case cited in Hall) (“There is a vast difference between a notice which is filed beyond the time allowed by law, and a notice which is filed before it
While a late motion for new trial or notice of appeal “fails to keep the case extant” and the opportunity for appeal or motion for new trial is lost after passage of the period of time prescribed for its filing, an early motion for new trial or notice of appeal is simply “dormant in its effect” and not legally cognizable before the judgment about which it complains is entered of record. Livingston, 221 Ga. App. at 566 (1). See also McKeever v. State of Ga., 189 Ga. App. 445, 446 (375 SE2d 899) (1988) (a whole-court decision) (judgment must be entered before motion for new trial can have any effect and before any appeal is possible). Once that judgment is entered, the early motion for new trial or notice of appeal ripens and becomes “as timely as any notice could ever be.” Livingston, 221 Ga. App. at 565 (1). See also McCulley v. State, 273 Ga. 40, 43 (4), n. 3 (537 SE2d 340) (2000) (premature notice of appeal “ripened upon the filing of the sentence”). It would be pointless and go beyond the statutory mandate to deem such premature motions for new trial or notices of appeal “void” — so long as they sufficiently indicate the judgment from which relief is sought — when
A different, conclusion is not required by considerations of stare decisis. “When we consider whether an earlier decision ought to be reexamined, we consider a number of factors, including the age of the precedent, the reliance interests involved, the workability of the prior decision, and most importantly, the soundness of its reasoning.” Lejeune v. McLaughlin, 296 Ga. 291, 298 (2) (766 SE2d 803) (2014) (citation and punctuation omitted). Turning first to the most important factor, we already have seen that the cursory analysis in Division 2 of Harrison and its progeny is unsound and inconsistent with the proper interpretation of statutes similar to OCGA § 5-5-40 (a). Second, “[t]he issue is one of appellate procedure, not contract, property, or other substantive rights in which anyone has a significant reliance interest.” Sosniak v. State, 292 Ga. 35, 49 (734 SE2d 362) (2012) (Nahmias, J., concurring). Moreover, Division 2 of Harrison has been followed infrequently See Woodard v. State, 296 Ga. 803, 813 (3) (b) (771 SE2d 362) (2015). Andas already discussed, the prevailing party below is not prejudiced by a premature motion for new trial. About
2. Viewed in the light most favorable to the verdict, the evidence shows that on the night of February 25, 2008, Kristopher Robinson picked up Southall and Tara Harris, drove to a hotel in Kingsland after midnight, and introduced Southall to Hainley, who was celebrating her receipt of a $2,000 tax refund. Robinson then left the hotel with Harris and went to Yulee, Florida for several hours. During that time, there were repeated attempts to place calls to Robinson’s cell phone from the phone in Hainley’s room. During this same period, Southall met a taxi driver at the hotel, shared some cocaine with him, and told him that “there was one girl left in this room, and he was trying to get her out of there.” The dispatcher for the taxi company overheard a portion of the conversation between Southall and the driver, and she testified that the person she overheard talking to the driver called after 3:00 a.m., asked for the same driver by name, and “said to just tell him, it’s over, it’s done, she’s dead.” Hotel phone records show that a call was made to the same taxi company from Hainley’s room at 3:28 a.m. Southall subsequently was in the vicinity of a pay phone at a gas station when the same taxi company received a call requesting a pickup at that location, a pickup occurred down the road, and around 6:00 a.m., the taxi took the customer to the apartment complex where Robinson lived with Jennifer Benjamin. Near that time, Southall appeared at the apartment door, and Benjamin heard him tell Robinson that “I f***ed up, I lost it, . . . there’s blood everywhere, she[’s] gone.”
The jury rejected Southall’s explanation that Hainley was alive when he last saw her and that Robinson was with her, and Southall does not dispute that the evidence is sufficient to sustain his convictions. Nevertheless, we have independently reviewed the record with an eye toward the legal sufficiency of the evidence, as is our customary practice in murder cases. We conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Southall was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See also Cheley v. State, 299 Ga. 88, 90 (1) (786 SE2d 642) (2016); Walker v. State, 296 Ga. 161, 163 (1) (766 SE2d 28) (2014) (“When we consider the legal sufficiency of the evidence, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.” (Citation and punctuation omitted)).
3. Southall contends that he was denied due process under Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and Giglio v. United States, 405 U. S. 150 (92 SCt 763, 31 LE2d 104) (1972), because the prosecution failed to disclose evidence that Jackson believed that, in return for his testimony in this case about Southall’s jailhouse confession, the State would contact the parole board on Jackson’s behalf. It is true that under Brady and Giglio, the State violates due process when it suppresses evidence that materially undermines witness credibility, including evidence about any
To the extent that Southall relies on certain representations by the State, they do not establish the existence of even an informal agreement. At the hearing on his motion for new trial, Southall presented evidence that, during a calendar call in a criminal prosecution of Jackson in 2014, the prosecutor referred to the upcoming hearing on Southall’s motion for new trial and announced that Jackson’s case was supposed to have been dismissed about six years earlier and it just never happened. The meaning of these statements is not entirely clear. Any connection between Southall’s and Jackson’s cases was left unexplained, and Jackson’s testimony in South-all’s case had occurred just two years earlier, not six years. See Capers v. State, 220 Ga. App. 869, 875 (4) (470 SE2d 887) (1996) (if no agreement to dismiss by nolle prosequi existed, “no disclosure was possible, much less required”). Moreover, Southall contends only that Jackson expected contact by the prosecutor with the parole board, and not the entry of a nolle prosequi in some pending prosecution. Southall also presented evidence in support of his motion for new trial showing that, long after his trial, Jackson said that an investigator had been telling him that the district attorney was going to do something after Southall’s motion for new trial, and Jackson also said that “they” told him that the district attorney was going to contact the parole board after the “trial” was over. But both the timing of the alleged statements to Jackson and any connection between Jackson’s case and his testimony at Southall’s trial is unclear.
Accordingly, the evidence on which Southall relies does “not suggest the existence of even an informal agreement,” Nwakanma, 296 Ga. at 496 (2), for Jackson to testify at Southall’s trial in exchange for the prosecutor’s help with the parole board. Cf. Wearry, 136 SCt at 1004-1006 (I) (B), (II) (Brady required disclosure of the fact that, before Wearry’s trial, police officers told a witness for the State who had twice sought a deal to reduce his existing sentence that they would talk to the district attorney if he told the truth). Moreover, both
Judgment affirmed.
Hainley was killed on February 26, 2008. Southall was indicted on May 21, 2008 and charged with malice murder, felony murder, aggravated assault, rape, unlawful distribution of a controlled substance, and unlawful possession of a controlled substance. His trial commenced on November 26, 2012, and the jury returned its verdict four days later, finding him guilty on all counts except rape. On February 5, 2013, Southall was sentenced to imprisonment for life without the possibility of parole for malice murder and a concurrent term of imprisonment for 30 years for distribution of a controlled substance. The verdict as to felony murder was vacated by operation of law, and the aggravated assault merged into the malice murder. See Malcolm v. State, 263 Ga. 369, 371-374 (4)-(5) (434 SE2d 479) (1993). (Southall asserts that the trial court erred when it failed to “vacate” the felony murder and instead purported to “merge” it with the malice murder. But because the felony murder was vacated by operation of law, Southall was not harmed when the trial court erroneously cited merger as the reason that it was not sentencing him for felony murder. See Gray v. State, 298 Ga. 885, n. 1 (785 SE2d 517) (2016). And as Southall also asserts and the State concedes, no remand for resentencing on aggravated assault is necessary, there being no evidence to establish a “deliberate interval” in the series of wounds. See Schutt v. State, 292 Ga. 625, 627 (2) (740 SE2d 163) (2013). Cf. Hulett v. State, 296 Ga. 49, 53-55 (2) (766 SE2d 1) (2014).) Further, possession of a controlled substance merged with distribution of a controlled substance . Southall prematurely filed a motion for new trial on February 4, 2013, and he amended it on December 18, 2013 and October 31, 2014. The trial court denied his motion on March 8, 2016, and Southall timely filed a notice of appeal on April 6, 2016. The case was docketed in this Court for the September 2016 term and was submitted for decision on the briefs.
As discussed below in Division 3, Southall claims the prosecution failed to disclose evidence that Harry Jackson believed, in return for his testimony in this case, the State would contact the parole board on his behalf. Prior to trial, Southall filed motions for disclosure of any agreement or arrangement between the State and its witnesses, as required by Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and Giglio v. United States, 405 U. S. 150 (92 SCt 763, 31 LE2d 104) (1972). He renewed that motion at trial before Jackson’s testimony. And Southall’s lawyer cross-examined Jackson about his eligibility for parole and how beneficial it would be for the prosecutors to write a letter to the parole board. But it was not until an amendment to his premature motion for new trial that Southall specifically raised the alleged failure of the State to disclose that Jackson believed that he would receive such a benefit. Indeed, Southall could not have raised this contention at trial, as he has relied entirely — both on motion for new trial and in this appeal — upon evidence that did not come into existence, and that he therefore was not aware of, until long after his trial had ended. Moreover, in his appellate brief, Southall complains about the trial court’s order denying his motion for new trial, and he relies on certain findings of fact in that same order.
When dealing with premature motions for new trial, the Court of Appeals has read our precedent as implicitly distinguishing between civil cases, such as Tremble and Dae, and criminal cases like Rockholt v. State, 291 Ga. 85, 86, n. * (727 SE2d 492) (2012). See Lopez v. State, 326 Ga. App. 770, 770-771, n. 1 (757 SE2d 436) (2014); Julian v. State, 322 Ga. App. 620, 621, n. 3 (744 SE2d 910) (2013). But the time limit provided in OCGA § 5-5-40 (a) applies to both civil and criminal cases. And although a number of our opinions in criminal cases have mentioned the prematurity of a motion for new trial (which, again, has never worked to deprive this Court of jurisdiction), many of them, like Rockholt, did not involve enumerations that were
We note that this conclusion is consistent with the practice in both federal courts and courts in our sister states. See United States v. Myrie, 776 F3d 1280, 1284 (II) (11th Cir. 2015) (“Where a motion is filed before the district court enters judgment and sentences the defendant, courts of appeals normally consider the motion along with the defendant’s direct appeal of his conviction and sentence.” (Citation omitted)); Xiong v. Marks, 668 SE2d 594, 600 (IV) (A) (N.C. App. 2008) (collecting federal cases and concluding that a motion for new trial may be filed before entry of judgment and that the trial court will have jurisdiction to hear and determine the motion after entry of judgment); New Addition Club v. Vaughn, 903 S2d 68, 72 (III) (Ala. 2004) (“if a party moves . .. for a new trial before the court has entered a judgment, the motion shall be treated as having been filed after the entry of the judgment and on the day thereof”); 11 Wright et al., Federal Practice & Procedure § 2812 (3d ed.) (April 2016 Update) (“Rule 59 (b) sets a maximum time for filing new-trial motions; there is nothing to prevent making a motion for a new trial before judgment has been entered, however.” (Footnote omitted)).
