Berky v. State
| Decision Date | 04 December 1995 |
| Docket Number | No. S94G1826,S94G1826 |
| Citation | 266 Ga. 28,463 S.E.2d 891 |
| Parties | BERKY v. The STATE. |
| Court | Georgia Supreme Court |
Russell T. Bryant, Lawrenceville, for Berky.
Gerald N. Blaney, Jr., Solicitor, Lawrenceville, Richard E. Thomas, Chief Asst. Solicitor, Lawrenceville, for State.
Nicholas A. Lotito, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta, Daniel A. Summer, Summer & Summer, Gainesville, amici curiae.
Cheryl H. Kelley, Gainesville.
Peter Gabor Berky was charged with DUI, driving with an unlawful alcohol concentration, speeding, and improper lane change. He filed a motion in limine to exclude a videotape allegedly showing his commission of the offenses charged. Because the arresting officer was killed in an unrelated incident after Berky's arrest, the State was unable to lay the foundation for the admission of the videotape, and the trial court entered an order granting the motion in limine. When the case was called for trial, the State announced that, in light of the trial court's order, it was unable to prosecute, and the trial court dismissed the case for want of prosecution. The Court of Appeals reversed, adopting the "silent witness" theory for admission of videotapes. The State v. Berky, 214 Ga.App. 174, 447 S.E.2d 147 (1994). We granted Berky's petition for certiorari to determine whether the Court of Appeals erred by accepting jurisdiction of the State's appeal from the trial court and, if not, whether the Court of Appeals erred by adopting the "silent witness" rule.
There is no basis for the State's appeal of an order granting a defendant's motion in limine on general evidentiary grounds. OCGA § 5-7-1(a); State v. Land-O-Sun Dairies, Inc., 204 Ga.App. 485, 487, 419 S.E.2d 743 (1992). However, the State does have a right of direct appeal "[f]rom an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof." OCGA § 5-7-1(a)(1). Indeed, an order of dismissal for want of prosecution is appealable in some instances. State v. Luttrell, 207 Ga.App. 116, 427 S.E.2d 95 (1993). See State v. Grimes, 194 Ga.App. 736, 392 S.E.2d 727 (1990). Compare State v. Gribble, 169 Ga.App. 446, 313 S.E.2d 720 (1984) (). Nevertheless, whether an order constitutes a dismissal of the indictment or accusation so that such an order is subject to appeal by the State under OCGA § 5-7-1(a)(1) Morris v. State, 262 Ga. 446, 447-448, 421 S.E.2d 524 (1992). Accordingly, even though an order is denominated as one of those which is appealable by the State, OCGA § 5-7-1(a) does not authorize an appeal if the order is the result of the exclusion of evidence based upon some general rule of evidence. State v. Lavell, 214 Ga.App. 525, 448 S.E.2d 270 (1994) (motion to suppress).
In this case, there was no defect in the accusation, nor was one alleged. Morris v. State, supra at 447-448, 421 S.E.2d 524. The record shows that the admissibility of the videotape under general rules of evidence was the only issue ever decided by the trial court. That decision was the basis of the State's announcement that it was not ready and was the only issue raised on appeal. See Lavell, supra at 526, 448 S.E.2d 270. The State cannot, by choosing to discontinue the prosecution based on an adverse evidentiary ruling, circumvent OCGA § 5-7-1(a) and create an alternative avenue for appeal. State v. Land-O-Sun Dairies, Inc., supra at 487, 419 S.E.2d 743 (). If, in this case, the trial court's dismissal "were directly appealable by the State under OCGA § 5-7-1[ (a)(1) ], any...
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