Birt v. State

• Decision Date: 25 November 1986
• Docket Number: No. 43898,43898
• Citation: 350 S.E.2d 241,256 Ga. 483
• Parties: BIRT v. The STATE.
• Court: Georgia Supreme Court

Page 241

350 S.E.2d 241

256 Ga. 483

BIRT v. The STATE.

No. 43898.

Supreme Court of Georgia.

Nov. 25, 1986.

Joseph M. Nursey, Millard C. Farmer, Jr., Carla J. Friend, Atlanta, for Billy Sunday Birt.

Richard A. Malone, Dist. Atty., Swainsboro, for the State.

MARSHALL, Chief Justice.

The appellant, Billy Sunday Birt, appeared before the Superior Court of Jefferson County for resentencing in a case in which his death penalty had been reversed. See Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276 (1980), cert. den. 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68 (1980).

The defense filed a motion to recuse Judge Walter C. McMillan, the judge scheduled to preside in the matter. Through appropriate administrative channels, the motion to recuse was assigned to Judge James B. O'Connor for determination, but Judge McMillan, notwithstanding, made a ruling that the motion was not timely and was not legally sufficient. On appeal, we reversed, holding that "once a superior court judge, against whom a motion to recuse has been filed, refers the motion to recuse to another judge, he is no longer qualified to hear any phase of the recusal hearing." Birt v. State, 255 Ga. 693, 342 S.E.2d 303 (1986).

Thereafter, Judge O'Connor granted the state's motion to dismiss the motion to recuse Judge McMillan, without an evidentiary hearing on the motion to recuse, from which order we granted this interlocutory appeal.

1. Rule 25.2 of the Uniform Rules for the Superior Courts provides: "When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, he shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse." (Emphases supplied.) 253 Ga. 841. Since Judge McMillan had not made the three requisite determinations at the time the motion was reassigned--i.e., the timeliness of the motion, the legal sufficiency of the affidavit, and whether, assuming any of the alleged facts were true, recusal would be warranted--and since, under our ruling in Birt v. State, 255 Ga. 693, 342 S.E.2d 303, supra, he could not make such determinations after the motion had been referred to another judge, it was necessary and proper for the assignee judge to have made these determinations, which the alleged recusant judge was supposed to have made.

2. It was not error to uphold the timeliness of the motion to recuse, which was filed "four days before the deadline imposed by Judge McMillan for filing the motion." Birt v. State, 255 Ga. 693, 342 S.E.2d 303, supra. See generally Rule 25.2 of the Uniform Rules for the Superior Courts, 253 Ga. 841, supra; Hunnicutt v. Hunnicutt, 248 Ga. 516(1), 283 S.E.2d 891 (1981).

3. As to the legal sufficiency of the accompanying "affidavit," it appears that the foundational facts for the allegation of the judge's bias and prejudice are stated in the recusal motion itself and the amendment thereto, and the "affidavit" accompanying the original motion (none accompanied the amendment) was merely a sworn verification that the facts contained in the foregoing motion are true and correct to the best of the movant-affiant's knowledge and belief.

Rule 25.1 of the Uniform Rules for the Superior Courts, 253 Ga. 841, supra, provides in part: "All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be in writing, accompanied by an affidavit asserting the facts upon which the motion is founded, and timely filed." (Emphasis supplied.) The case law has generally upheld the necessity for such affidavit. E.g., Hunnicutt v. Hunnicutt, 248 Ga. 516(1), 283 S.E.2d 891, supra; State v. Fleming, 245 Ga. 700, 702, 267 S.E.2d 207 (1980); Quarterman v. Memorial Medical Center, 176 Ga.App. 92(1), 335 S.E.2d 589 (1985), cert. den.; Wages v. State, 165 Ga.App. 587(1), 302 S.E.2d 112 (1983), cert. den.; Buford v. State, 162 Ga.App. 498(7), 291 S.E.2d 256 (1982), cert. den.; Howard v. Dept. of Human Resources, 157 Ga.App. 306(1), 277 S.E.2d 301 (1981).

However, it is an elementary rule of pleading that substance, not mere nomenclature, controls. McDonald v. State, 222 Ga. 596, 597(1), 151 S.E.2d 121 (1966); Deen v. State, 216 Ga. 387(2), 116 S.E.2d 595 (1960). The rule in civil practice, that "[a]ll pleadings shall be so construed as to do substantial justice" (OCGA § 9-11-8(f)), should be no less applicable in a criminal case, especially one, as here, involving the death penalty. Hence, the original motion to recuse, construed together with the "affidavit" verifying the facts alleged in the original motion, is deemed to constitute a substantial compliance with the requirements of Rule 25.1 of the Uniform Rules for the Superior Courts, supra, and the case law, as to the original motion. (The amendment to the motion, not having been verified, is not properly considered.)

There is some support for this construction in the case law. State v. Fleming, 245 Ga. 700, supra, p. 702, 267 S.E.2d 207, cites to federal cases holding that "even absent a legally sufficient affidavit, it is still within the trial judge's discretion to refuse to hear the case on the grounds of personal prejudice or bias. [Cits.]" In Jordan v. Hodges, 162 Ga.App. 473(1), 291 S.E.2d 778 (1982), the reviewing court looked at both the motion and the accompanying affidavit for the foundational facts. In Riggins v. State, 159 Ga.App. 791, 285 S.E.2d 579 (1981), although the motion was unsupported by affidavit, the appellate court noted that "no other evidence concerning the allegations appears in the record." In Cargill v. State, 255 Ga. 616, 622(2), 340 S.E.2d 891 (1986), we recognized the requirement of a supporting affidavit, but nevertheless ruled on the merits of the motion to recuse...