Johnson v. State

• Decision Date: 27 August 2018
• Docket Number: S18A1277
• Citation: 818 S.E.2d 601,304 Ga. 369
• Parties: JOHNSON v. The STATE
• Court: Georgia Supreme Court

304 Ga. 369

818 S.E.2d 601

JOHNSON

v.The STATE

S18A1277

Supreme Court of Georgia.

Decided: August 27, 2018

Brian Chiles Tevis, TEVIS LAW FIRM, LLC., 101 Marietta Street N.W., Suite 3325, Atlanta, Georgia 30303, for Appellant

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Marc A. Mallon, Senior A.D.A., FULTON COUNTY DISTRICT ATTORNEY'S OFFICE, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, for Appellee

Hines, Chief Justice

John Johnson was convicted of murder but was granted a new trial. The State appealed, and the trial court entered an order denying Johnson's motion for appeal bond. Johnson now appeals from that order, contending that it is directly appealable pursuant to OCGA § 5-7-5¹ and that the denial of bond violates the same statute. For the reasons that follow, which differ from those given by the trial court, we affirm.

Johnson was charged with murder and related crimes in 2006, was granted pretrial bond, was tried before a jury in 2014, was convicted of felony murder and possession of a firearm during the commission of a felony, and was sentenced to life imprisonment for the murder and a consecutive five-year term for the firearms charge. The trial court, however, granted his motion for new trial and vacated the previously imposed sentences, and the State filed a notice of appeal.² Johnson subsequently filed a motion for appeal bond in the trial court under OCGA § 5-7-5. After a hearing, the trial court denied that motion, deciding that "the bond [Johnson] seeks is not, in fact, a supersedeas or appeal bond to which OCGA § 5-7-5 applies, but is rather a pretrial bond, which would put [him] back in his previous posture before trial in 2014," and that the pertinent question "is not whether [Johnson] should [be] granted bond pending the outcome of the State's appeal, but whether [he] should be released on bond while he is awaiting a new trial on the charges against him." The trial court examined the circumstances and concluded that Johnson "should not be released on bond prior to his new trial." Although Johnson did not obtain a certificate of immediate review from the trial court, he filed an application for discretionary review, which we granted to consider both the appealability and the merits of the order denying bond.³

1. We first consider whether the denial of Johnson's appeal bond is directly appealable. Johnson relies on the second sentence of OCGA § 5-7-5, which provides that "[t]he amount of the bail, to be set by the court, shall be reviewable on direct application by the court to which the appeal is taken." This sentence must be read, Johnson argues, to include review of a denial of bail pending an appeal by the State. For purposes of this appeal only, we assume that this provision of OCGA § 5-7-5 does not provide for direct review of the denial of bail. The Appellate Practice Act (APA), OCGA §§ 5-6-30 through 5-6-51, allows appeals by defendants to be taken from "[a]ll final judgments, that is to say, where the case is no longer pending in the court below ...." OCGA § 5-6-34 (a) (1). In Humphrey v. Wilson , 282 Ga. 520, 524 (1), 652 S.E.2d 501 (2007), we overruled our previous precedent requiring compliance with the interlocutory appeal provisions of OCGA § 5-6-34 (b) and held that the denial of the request for bail pending a warden's appeal in a habeas case was a final judgment. 282 Ga. at 523-524 (1), 652 S.E.2d 501. Likewise, we view the denial of Johnson's motion for appeal bond as a final judgment.

The trial court erred in characterizing that motion as one for pretrial bond. "The interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) are required to obtain review of an order denying or setting pre-trial bond." Mullinax v. State , 271 Ga. 112, 112 (1), 515 S.E.2d 839 (1999). Johnson's case, however, is currently at an appellate stage and will not return to a pretrial stage unless and until we affirm the grant of new trial when we consider the State's appeal. Moreover, during the State's appeal, Johnson's case cannot be considered to be "pending in the court below," OCGA § 5-6-34 (a) (1), because the granting of a motion for new trial "shall be considered a final order" for purposes of any ensuing appeal by the State. OCGA § 5-7-2 (c). Accordingly, we conclude that Mullinax is inapplicable, that the denial of Johnson's motion for appeal bond is directly appealable by Johnson, and, therefore, this appeal is not subject to dismissal for failure to obtain a certificate of immediate review as required by OCGA § 5-6-34 (b).

2. Turning to the merits, Johnson relies on the first sentence of OCGA § 5-7-5, which provides that, "[i]n the event the state files an appeal as authorized in this chapter, the accused shall be entitled to reasonable bail pending the disposition of the appeal, except in those cases punishable by death...." The initial condition of the statute is met, as the State did file its appeal as authorized in Chapter 7 of Title 5 of the Georgia Code, the same chapter that includes this bail provision. See OCGA §§ 5-7-1 (a) (8), 5-7-2 (c). Johnson insists that he is therefore "entitled to be released" under OCGA § 5-7-5 because the State has not in any manner sought the death penalty in his case, and that, as a result, the case does not come within the exception for "those cases punishable by death." The State, however, argues that Johnson's case is "punishable by death" because he was charged with murder and the death penalty is one of the sentencing options provided for that crime. See OCGA §§ 16-5-1 (e) (1) ("A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life."); 17-10-30 (b) (requiring consideration of mitigating and aggravating circumstances in cases of offenses, other than aircraft hijacking and treason, "for which the death penalty may be authorized").

In construing OCGA § 5-7-5, we "presume that the General Assembly meant what it said and said what it meant and so we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. The common and customary usages of the words are important, but so is their context," which includes not only the statute's other provisions and its structure and history, but also the constitutional, statutory, and common law "that forms the legal background of the statutory provision in question." Blackwell v. State , 302 Ga. 820, 828 (4), 809 S.E.2d 727 (2018) (citation and quotation marks omitted). The word " ‘punishable’ is not a term of art and has an ordinary meaning." United States v. Mangahas , 77 M.J. 220, 224 (C.A.A.F. 2018). And the phrase "punishable by death" has long been used to define the term "capital" felony or offense. State v. Ameer , No. S-1-SC-36395, ––– P.3d ––––, ––––, 2018 WL 1904680, at *2 (N.M. April 23, 2018) ; Mills v. Moore , 786 So.2d 532, 538 (Fla. 2001).

Consistent with the ordinary use of this terminology, this Court has held that, although certain offenses like armed robbery can no longer be considered capital felonies, murder is "punishable by death" and remains a "capital felony," as those two phrases are used in OCGA § 17-7-70. Weatherbed v. State , 271 Ga. 736, 737-738, 524 S.E.2d 452 (1999). Cf. Orr v. State , 276 Ga. 91, 92 (1), 575 S.E.2d 444 (2003). The reason is that murder "belongs to a class of case in which the death penalty can, under certain circumstances, be imposed," as distinguished "from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same." Weatherbed , 271 Ga. at 738, 524 S.E.2d 452 (citation, quotation marks, and emphasis omitted). And "[t]he fact that the State has chosen not to pursue the death penalty does not change the class of case to which it belongs." Id. at 738-739, 524 S.E.2d 452 (emphasis in original). Moreover, federal circuits interpreting the phrase "punishable by death" in a statute of limitation agree that this language, as with similar language in other statutes, reflects the serious nature of the offense, and that whether an offense is "punishable by death" depends on whether the statute dealing with that offense authorizes death as a punishment, rather than whether the prosecution seeks the death penalty or whether the death penalty is available in the circumstances of a particular case. United States v. Payne , 591 F.3d 46, 57-59 (2d Cir. 2010). See also United States v. Ealy , 363 F.3d 292, 296-297 (4th Cir. 2004) (certain federal statutory murder offenses were "punishable by death" even if the death penalty could not constitutionally be imposed because the prosecution did not allege any of the statutory aggravating factors in the indictment); OCGA § 17-10-31 (a) (recognizing that an offense may be "punishable by death" and yet a sentence of death be prohibited in the absence of a finding of at least one statutory aggravating circumstance). Johnson argues in his appellate reply brief that OCGA § 5-7-5 excepts only cases punishable by death, but Weatherbed was dealing with a statute, OCGA § 17-7-70 (b), that likewise excepted from its application "cases" that were "punishable by death." See also Neal v. State , 290 Ga. 563, 567-572, 722 S.E.2d 765 (2012) (Hunstein, C.J., concurring, joined by all Justices, similarly holding that our appellate jurisdiction over "cases" in which a sentence of death "could be imposed" includes all murder cases).

We can discern no reason from the immediate context of OCGA § 5-7-5 or from its legal background to interpret the phrase "cases punishable by death" in that statute in any manner different from our interpretation of ...