Case Information
*1 In the Supreme Court of Georgia
Dеcided: September 22, 2014 S14A1006. THE STATE v. HILL.
HINES, Presiding Justice.
This is an appeal by the State from the grant of David Hill’s extraordinary motion for new trial following his convictions and sentencing for felony murder and two aggravated assaults. For the reasons which follow, we reverse.
In 2002, Hill, Orlando Culler, and Trayeon White were jointly tried and
convicted of the November 18, 2001 felony murder of Alvita Waller and the
aggravated assaults of Terrell Mills and Anthony Hunter. Hill was sentenced
to life in prison for felony murder and to two probated sentences of fifteen years
for two counts of aggravated assault, to be served concurrently to each other and
consecutively to the sentence for felony murder. Hill filed a motion for new
trial on December 13, 2002, and amended it on April 18, 2003; the motion was
denied on July 17, 2003. Hill and his co-defendants appealed to this Court, and
their convictions were affirmed in 2004. See
Culler v. State,
In the prior direct appeal, this Court noted that the evidence authorized the jury to find that Hill, Culler, and White were at a home in Bibb County when they decided to go to a nearby house, located on Amos Street, and retaliate for the death of Culler's brother, who had been killed the previous day; along with several others, the three men, who were armed with handguns, traveled to Amos Street in two cars; they attempted to kick in the frоnt door of the Amos Street house, and when that failed, they began firing random shots into the house; one of the three people inside the house, Waller, was shot in the head and killed; the *3 intended target, Mills, was shot in the shoulder and injured; Hunter, who was asleep in a back bedroom when the shooting occurred, was left unharmed once the gunfire ended; an eyewitness testified that he watched the shooting and heard shots being fired from three distinct guns; Culler later told a friend that he had fired shots into the home, and thought he had killed Waller; ballistics reports identified shell casings recovered from the scene as having been fired from at least two different guns, possibly more; and DNA testing identified a red baseball cap recovered from the front yard of the Amos Street house as having been worn by Hill.
In his extraordinary motion for new triаl, Hill alleged that he was entitled
to a new trial because of newly-discovered evidence involving a witness named
Shaneka Jackson (“Shaneka”). His claim was based on three arguments: (1)
Hill’s rights to due process under
Brady v. Maryland
,
The successor court found, inter alia, that Shaneka’s affidavit testimony was credible and reliable, that Fletcher’s investigatory practices were unreliable and not credible, and that a “fully-informed” jury should decide the question of Hill’s involvement. [1] It found in favor оf Hill on all three of the bases of his claim of newly-discovered evidence, vacated his convictions, and granted him a new trial.
The determination of this appeal must begin with an analysis of the
precepts of appellate review of the ruling. It is certainly truе that this Court will
not disturb the first grant of a new trial on the general grounds in a criminal case
unless the trial court abused its discretion in granting it and the law and facts
*5
require the verdict rendered. OCGA § 5-5-50
[2]
;
State v. Harris
,
*8
In regard to Hill’s claim of a violation of
Brady v. Maryland
, Hill had to
show that: (1) the State, which would include any part of the prosecution team,
possessed evidence favorable to him; (2) he did not possess the favorable
evidence and could not obtain it himself with any reasonable diligence; (3) the
State suppressed such favorable evidence; and (4) a reasonable probability that
the outcome of the trial would have been different had the favorable evidence
been disclosed to the defense.
State v. James
,
Again, Hill failed to show that the State either possessed or suppressed any favorable evidence, because there is no evidence that Shaneka actually gave Fletcher the alleged alibi information. Indeed, her 2001 statement to Fletcher, which was provided to the defense prior to trial along with a witness list naming Shaneka, was anything but exculpatory as to Hill. She named her then boyfriend, two cousins, and an acquaintance, who allegedly were in her apartment in the early morning hours prior to the shooting but did not mention Hill. She also stated that she was in another room when she heard an individual or individuals knock on the apartment door and enter the apartment; that she heard loud talking and cursing after someone said that Culler’s brother had been *9 killed, and in fact, she told “everybody to hold it down”; that she heard the individuals who had arrived at the apartment leave; and that she heard gunshots about five minutes after the unnamed individuals left her apartment. Thus, even if Hill was one of the unnаmed individuals who exited the apartment, and the gunshots heard by Shaneka were indeed those resulting in the present crimes, the expressed time line would not rule out Hill’s involvement. Thus, questions of Hill’s diligence in ascertaining Shaneka’s knowledge about the night of the shooting, or any potential impact on the outcome of trial need not be reached.
It was also error for the successor court to find that Hill satisfied the criteria of Timberlake v. State for granting a new trial on the basis of newly discovered evidence. He had to satisfy the court that (1) the evidence at issue came to his knowledge since his trial; (2) it was not owing to the want of due diligence that he did not acquire it sooner; (3) such evidence is so material that it would probably produce a different verdict; (4) the evidence is not merely cumulative; (5) the affidavit of the witness herself should be procured or its absence accounted for; and (6) the effect of the evidence would be more than to merely impeach the credibility of a witness. Id. at 491 (1). Hill cannot satisfy *10 even the threshold requirements of Timberlake .
The statements in Shaneka’s 2012 affidavit upon which Hill relies were
nоt new evidence in that they certainly did not come to Hill’s knowledge since
his trial. Accepting arguendo, the accuracy of the statements in Shaneka’s
affidavit, Hill was present and aware of Shaneka being at her home on the night
and time of the shooting, and also aware of her knowledge that Hill was there
as well. Furthermore, as noted, a witness list naming Shaneka and her
2001statement to police were provided to Hill pre-trial; therefore, Hill had
ample opportunity to secure her as a witness. The failure to satisfy even one of
the
Timberlake
requirements is cause for the denial of a new trial on the basis
of alleged newly discovered evidence.
Davis v. State
,
Finally, the successor court erroneously found that Hill should be granted
a new trial based on a claim of actual innocence, premised upon the 1916 case
of
Joiner v. State
,
if the conviction of the accused rests upon circumstantial evidence alone, and the newly discovered evidence is direct and positive in character as to the innocence of the defendant, and such testimony would, if the witness be credited, produce a different result on a second trial.
The alleged newly-discovered evidence is far from “direct and positive” as to Hill’s innocеnce, and even if fully credited, does not refute the evidence of Hill’s guilt adduced at trial; consequently, the offered evidence is unlikely to produce a different result upon retrial.
Simply, the successor court abused its discretion in granting Hill’s extraordinary motion for new trial.
Judgment reversed. All the Justices concur.
Notes
[1] The successor court rejected the State’s contention that a “Motion to Vacate and Void” filed by Hill in 2004, was substantially an extraordinary motion for new trial, and therefore, that the present motion was a second extraordinary motion for new trial, which was procedurally barred by OCGA § 5-5-41 (b).
[2] OCGA § 5-5-50 provides: The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.
[3] Shaneka’s 2012 affidavit stated in relevant part as to Hill’s alibi that on Sunday, November 18, 2001, she was living near the crime scene; that she was out socializing on Saturday evening, November 17, 2001, and that in the early morning hours of November 18, several people returned to her home to retrieve their vеhicles; that Hill and White were in her home after midnight; that when she returned home, she immediately went to bed but her friends (unnamed) were still in the house; that although she was in the bedroom, she could hear what was said; that “at some point” a neighbor came to the house and said that Cullеr’s brother had been shot to death; that she heard “people” in her living room reacting emotionally to the news; that Hill, White, and “others” left together shortly after learning of the death; that she “heard gunshots outside, somewhere in the neighborhood, after the news about [Culler’s brother] was delivered but before the men departed”; shortly after the crimes at issue, Fletcher had her brought to his office and after Fletcher and she “spoke off the record for a while,” she gave a statement which was typed as she spoke; and that during Fletcher’s questioning of her, he expressed dissatisfaction with what she was able to tell him and wanted her to incriminate Hill, White and others, offering her inducements and making threats.