THE STATE v. CASH et al.
S15A0720
Supreme Court of Georgia
DECIDED SEPTEMBER 14, 2015
RECONSIDERATION DENIED NOVEMBER 16, 2015
779 SE2d 603
THOMPSON, Chief Justice.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellant. Rajkumar Rudolph, pro se.
molestation where both crimes were premised on “a single act of sexual intercourse with the five-year-old victim“). Accordingly, the habeas court‘s grant of Rudolph‘s writ of habeas corpus must be reversed, and Rudolph‘s conviction for statutory rape must be reinstated.
Judgment reversed. All the Justices concur.
DECIDED SEPTEMBER 14, 2015 — RECONSIDERATION DENIED NOVEMBER 16, 2015.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellant.
Rajkumar Rudolph, pro se.
S15A0720. THE STATE v. CASH et al. (779
THOMPSON, Chief Justice.
The State appeals the trial court‘s grant of new trials to appellees, Elgerie Cash and her daughter, Jennifer Weathington, who were tried together in Paulding County Superior Court and found guilty of malice murder, felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony in connection with the shooting death of Lennis Jones.1 Appellees, who claimed the victim accidentally shot himself, each filed a motion for new trial.
Four days prior to the scheduled hearing on the new trial motions, the State filed a motion to recuse the trial judge. The trial judge dismissed the State‘s recusal motion as legally insufficient without referring it to another judge and orally denied the State‘s request for a certificate of immediate review. The State immediately filed a notice of direct appeal, which the trial court dismissed as frivolous and dilatory. After denying the State‘s request for a continuance, the trial court proceeded with the motion for new trial hearing as scheduled.
Following a two-day hearing, the trial court granted both appellees’ motions for new trial, finding they received ineffective assistance of counsel at trial and that the verdicts were contrary to the principles of justice and equity and decidedly and strongly against the weight of the evidence. Thereafter, the State filed a notice of appeal, appealing the trial court‘s orders granting appellees’ motions for new trial, as well as its order denying the State‘s motion to recuse. For the reasons that follow, we dismiss the State‘s appeal of the denial of its motion to recuse and affirm the trial court‘s grant of new trials to appellees.2
(a) Appeals by the State in criminal cases are construed strictly against the State and “the State may not appeal any issue in a criminal case, whether by direct or discretionary appeal, unless that issue is listed in OCGA § 5-7-1.” State v. Martin, 278 Ga. 418, 419 (603 SE2d 249) (2004) (emphasis in original). Accord State v. Johnson, 292 Ga. 409, 410-411 (738 SE2d 86) (2013); State v. Caffee, 291 Ga. 31, 33 (728 SE2d 171) (2012). Thus, in Martin, we held that the State could not appeal the denial of its motion to recuse the trial judge, because
After our 2004 decision in Martin, the General Assembly amended
(b) The State argues that, even if its appeal of the recusal order is not proper under
We must resolve this issue against the State based on the well-settled principle that “the right to appeal, even in criminal cases, is not constitutional but ‘purely a creature of statute.‘” Sosniak v. State, 292 Ga. 35, 44, n. 4 (734 SE2d 362) (2012) (Nahmias, J., concurring) (quoting Abney v. United States, 431 U. S. 651, 656 (97 SCt 2034, 52 LE2d 651) (1977)). Accord State v. Smith, 268 Ga. 75, 75 (485 SE2d 491) (1997). Appeals from orders that satisfy the requirements of the collateral order doctrine are directly appealable because they are considered to come within the terms of a relevant statute that authorizes appeals from final judgments. See Sosniak, 292 Ga. at 37 (explaining that the order sought to be appealed in that case would be appealable as a “final judgment” under
Although sometimes referred to as an “exception” to statutes allowing a direct appeal only from the final judgment in a case, the collateral order doctrine actually reflects a “practical rather than a technical construction” of such statutes, one that recognizes that a very “small class” of interlocutory rulings are effectively final in that they “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case
is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U. S. 541, 546 (69 SC 1221, 93 LE 1528) (1949).
Sosniak, 292 Ga. at 44, n. 4 (Nahmias, J., concurring).
As explained above, an order that satisfies the requirements of the collateral order doctrine is considered to be effectively final and would be appealable because it comes within the terms of a relevant statutory right to appeal final judgments. Here,
For these reasons, the State has no right to appeal the order denying its motion to recuse under the collateral order doctrine even if the order were determined to satisfy the requirements of the doctrine. Accord Osborne, 330 Ga. App. at 692 (holding that the State‘s appeal of the denial of its motion to recuse was not appealable under the collateral order doctrine and that to apply the doctrine “would render meaningless those parts of the existing statutory scheme which govern the state‘s appeal of the denial of a motion to recuse a judge“).
(c) Finally, because there is no constitutional right to appeal, there is no merit to the State‘s argument that it violates its right to due process to deny it an opportunity to appeal the denial of its recusal motion. See Sosniak, 292 Ga. at 44, n. 4 (Nahmias, J., concurring); Smith, 268 Ga. at 75. See also South Carolina v. Katzenbach, 383 U. S. 301, 323-324 (86 SCt 803, 15 LE2d 769) (1966) (holding that the State of South Carolina was not a “person” under the Due Process Clause of the Fifth Amendment).
For the foregoing reasons, we dismiss the State‘s appeal of the trial court‘s order denying its motion to recuse.3
2. The State claims that the trial court erred in granting the appellees’ motions for new trial based on the “general grounds.” See
(a) The State first argues that the trial court erred in failing to rule on the general grounds of appellees’ motions for new trial before it heard evidence — which was relevant to appellees’ claims of ineffective assistance of trial counsel — at the motion for new trial hearing that was not presented to the jury. The State cites no authority for its proposed rule, and there is no such requirement in the statutory provisions that govern motions for new trial. See
(b) To the extent that the State argues that the trial court erred in granting a new trial on the general grounds based on its consideration of the evidence introduced at the motion for new trial hearing that was not heard by the jury, the record does not show that the trial court relied on that evidence. During its oral ruling at the motion for new trial hearing, the trial court clearly relied on the evidence introduced at trial, saying that in assessing the credibility of the witnesses and the conflict in the evidence, he would grant new trials on the general grounds. Further, in its order granting a new trial, the trial court said it was doing so on the general grounds, citing
(c) The State also argues that the trial court abused its discretion in granting a motion for new trial on the general grounds. We disagree.
With regard to the trial court‘s role in evaluating a motion for new trial on the general grounds, we have said:
Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to ... the principles of justice and equity,”
OCGA § 5-5-20 , or if the verdict is “decidedly and strongly against the weight of the evidence.”OCGA § 5-5-21 . When properly raised in a timely motion, these grounds for a new trial — commonly known as the “general grounds” — require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.‘” In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless — it is, after all, a discretion that “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict,” — it nevertheless is, generally speaking, a substantial discretion.
Allen v. State, 296 Ga. 738, 740 (770 SE2d 625) (2015) (citations omitted).
On review, “‘[t]he first grant of a new trial on the general grounds will ordinarily not be disturbed by the appellate court absent an abuse of discretion in that the evidence demanded the verdict rendered.‘” O‘Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009) (citation omitted). See
Here, the evidence shows that about 2:30 p.m. on May 30, 2011, Cash called 911 reporting a shooting at her home. The first police officer that arrived on the crime scene did so within one to two minutes of the 911 call. Cash was standing on the front porch of the home, crying, screaming for help, and saying that it was an accident. Cash directed the officer to an upstairs bedroom, where he found Weathington cradling the victim‘s head
Although there was a hat at the crime scene, the police did not take it on the day of the crime despite a thorough investigation of the crime scene. It was recovered a week later, after police noticed it in a photograph of the crime scene they were reviewing. Before it was recovered, Cash had at one time placed it in the garbage but then retrieved it; at another time, she had put it in her laundry room with some dirty clothes. The hat had the victim‘s blood on it, as well as a bullet hole in it that matched the location of the entry wound to the victim‘s head. Forensic testing also showed that the web of the victim‘s right hand had gunshot residue on it.5
The medical examiner had concluded his autopsy before the hat was discovered and the testing of it completed. He concluded that the victim was shot from more than 18 inches based on the lack of stippling and gunshot residue on the victim. Based on these findings, he concluded that the victim did not shoot himself. At trial, the medical examiner acknowledged that a hat would have captured some evidentiary material from the gunshot and that Cash‘s movement of the hat could have caused some evidentiary material to be lost. He maintained, however, that the victim was not wearing the hat when he was shot. He explained that he did not see biologic material on the hat when he examined it and that he would have expected the hat to have that type of material on it if the victim had been wearing it.
In ruling on the general grounds at the motion for new trial hearing, the trial court noted that the crime occurred on a “holiday weekend with the neighbors home“; that appellees immediately called for help; that the investigators failed to take the hat immediately; that the medical examiner did not have the hat to consider at the time of his initial autopsy; and that the hat had the victim‘s blood on it. Right after these statements, the trial court said:
So I will — in the role of the thirteenth juror, ... grant a new trial in this case. And I think that based on the conflicts in the evidence, my perception of the credibility of the evidence including the [medical examiner] and others, that my granting a new trial is consistent with the principles of equity and justice.
We conclude that the trial court, who observed the trial and who had the duty to examine the conflicts in the evidence and the credibility of the witnesses in ruling on the general grounds, did not abuse its broad discretion in granting appellees’ new trials on the general grounds.6
Judgment affirmed in part and appeal dismissed in part. All the Justices concur.
DECIDED NOVEMBER 16, 2015.
Donald R. Donovan, District Attorney, Steven J. Messinger, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellant.
Robert H. Citronberg; Andrew S. Fleischman, for appellees.