Mitchum v. State

• Decision Date: 07 October 2019
• Docket Number: S19A0554
• Court: Georgia Supreme Court
• Parties: MITCHUM v. The STATE.

306 Ga. 878

834 S.E.2d 65

MITCHUM

v.The STATE.

S19A0554

Supreme Court of Georgia.

Decided: October 7, 2019

SarahL. Gerwig- Moore, J. Scott Key, Mathew Gilbo, Meagan Hurley, Ezra A. Gantt, Andrea L. Clark, Gabrielle L. Biggs, for appellant. J. Thomas Durden, Jr., District Attorney, Billy J. Nelson, Jr., Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

Melton, Chief Justice.

This case concerns a challenge to a criminal conviction raised in an extraordinary motion for new trial. Specifically, we address whether a post-appeal challenge to a criminal conviction based on alleged improper communications with the jury that occurred during the defendant's trial but that were not brought to the defendant's attention until years later may be properly pursued through an extraordinary motion for new trial, or whether such claims must be pursued exclusively through a petition for a writ of habeas corpus. As explained more fully below, because the claims of improper communications in this case involve the alleged deprivation of the defendant's constitutional rights, and because habeas corpus provides an adequate remedy for addressing those claims, the claims could be pursued only through habeas corpus. Accordingly, an extraordinary motion for new trial was not the proper vehicle through which the defendant could pursue his claims, and the trial court should have dismissed the motion. However, because the trial court denied the motion instead of dismissing it, we vacate the trial court's decision and remand the case to the trial court for the purpose of entering an order dismissing the extraordinary motion for new trial.

By way of background, following an October 26-27, 1999 jury trial, Robert Earl Mitchum was convicted of felony murder, and his conviction was upheld by this Court on appeal. See Mitchum v. State , 274 Ga. 75, 548 S.E.2d 286 (2001). Fifteen years later, on February 8, 2016, Mitchum filed a pro se extraordinary motion for new trial based upon alleged improper communications with the jury. On April 15, 2016, Mitchum supplemented his extraordinary motion with a pro se "Affidavit of Truth," an "Enumeration of Errors" document, and affidavits from Bobby Dean Collins and Judy Ann Collins, two individuals who were present at his trial. The Collinses averred in their affidavits that, following the October 5, 1999 voir dire proceedings connected with Mitchum's criminal trial, they witnessed the trial judge, the prosecutor on the case, Mitchum's defense attorney, and a senior superior court judge of the county eating dinner with the twelve jurors selected for Mitchum's case, as well as two alternate jurors, at a local restaurant. The Collinses also claimed that the trial judge and the senior superior court judge ate lunch with the trial jurors at the same local restaurant on October 27, 1999, after the jurors had begun their deliberations. Without holding a hearing, the trial court denied the extraordinary motion on September 6, 2018. This Court granted Mitchum's application for a discretionary appeal to examine the propriety of the trial court's ruling.

1. Our analysis begins with an examination of the range of issues that may be properly raised in the two types of post-conviction relief that are implicated in this case – an extraordinary motion for a new trial and a petition for a writ of habeas corpus.¹

(a) Extraordinary Motions for New Trial

Extraordinary motions for new trial may be filed outside of the standard 30-day time period in which motions for new trial must generally be filed following the entry of a judgment. OCGA § 5-5-40 (a) ("All motions for new trial, except in extraordinary cases , shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.") (emphasis supplied). However, "some good reason must be shown why the motion [for new trial] was not made during [the 30-day] period [from the entry of judgment], which reason shall be judged by the [trial] court." OCGA § 5-5-41 (a). After the 30-day period from the entry of a judgment has expired, "no motion for a new trial from the ... judgment shall be made or received unless the same is an extraordinary motion or case; and only one such extraordinary motion shall be made or allowed." Id. at (b).

Because they are an extraordinary remedy, extraordinary motions for new trial "are not favored" in either civil or criminal cases. Davis v. State , 283 Ga. 438, 440 (2), 660 S.E.2d 354 (2008) ("Extraordinary motions for new trial are not favored, and a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground.") (citation and punctuation omitted); Ford Motor Co. v. Conley , 294 Ga. 530, 539 (2), 757 S.E.2d 20 (2014) ("Untimely efforts to obtain a new trial have long been disfavored by the law because they work to undermine the finality of judgments and the reliance that litigants are normally entitled to place on final decisions rendered in our courts."). And,

[e]xcept for the requirement in OCGA § 5-5-41 (a) that the moving party show a ‘‘good reason’’ for not seeking a new trial within 30 days of the judgment, the requirements for extraordinary motions for new trial are not specified by statute but instead are the product of case law that draws on the statutory requirements for ordinary motions for new trial.

Ford Motor Co. , supra, 294 Ga. at 540 (2), 757 S.E.2d 20. In this sense, the judicially created parameters of an extraordinary motion for a new trial are akin to other "extraordinary remedies" that allow an individual to seek redress of wrongs where no other adequate remedy exists. See, e.g., Merchant Law Firm, P.C. v. Emerson , 301 Ga. 609, 611 (1), 800 S.E.2d 557 (2017) ("Mandamus is an extraordinary remedy to compel a public officer to perform a required duty when there is no other adequate legal remedy .") (emphasis supplied; citations and punctuation omitted). An extraordinary motion for new trial is an extraordinary remedy that provides a means for a defendant to seek a new trial outside of the ordinary 30-day period when extraordinary circumstances exist.

In this regard, our prior case law has established that the discovery of new evidence that would be admissible at the defendant's criminal trial and that materially affects the question of the defendant's guilt or innocence is a proper subject of an extraordinary motion for new trial. See Dick v. State , 248 Ga. 898, 899, 287 S.E.2d 11 (1982). See also Timberlake v. State , 246 Ga. 488, 491 (1), 271 S.E.2d 792 (1980) (outlining the six factors that must be satisfied in order for new trial to be granted based on newly discovered evidence, and concluding that, "[i]mplicit in the[ ] six requirements [for granting the extraordinary motion] is that the newly discovered evidence must be admissible as evidence [at the defendant's trial]"); Bush v. Chappell , 225 Ga. 659 (2), 171 S.E.2d 128 (1969) (where the matter involves the discovery of new evidence that affects the question of a defendant's guilt or innocence, the defendant's remedy lies in an extraordinary motion for new trial and not in habeas).²

Here, Mitchum contends that the "newly discovered evidence" in this case involves improper communications between judges, lawyers, and jurors that occurred on two occasions at a restaurant outside of the courthouse. However, despite the fact that such allegations might be quite disturbing, if true, these allegations alone do not speak to Mitchum's guilt or innocence. See, e.g., Ford Motor Co. , supra, 294 Ga. at 540 (2), 757 S.E.2d 20 (extraordinary motion for new trial was not based on "newly discovered evidence" where it did not concern "evidence related to witnesses and exhibits that allegedly should have been considered by the jury in reaching its verdict"). Accordingly, Mitchum's claim in this case is not properly framed as one that involves "newly discovered evidence" of guilt or innocence as that phrase has been interpreted in cases such as Timberlake and Davis .

However, in certain contexts, "the late filing of a motion for new trial may also be predicated on circumstances other than newly discovered evidence" that affects the defendant's guilt or innocence. (Citation and punctuation omitted.)

Fowler Props. v. Dowland , 282 Ga. 76, 79 (3), 646 S.E.2d 197 (2007). See also Ford Motor Co. , supra, 294 Ga. at 540-541 (2), 757 S.E.2d 20 ("Any party making an extraordinary motion for new trial [on grounds other than newly discovered evidence of guilt or innocence] must meet two fundamental requirements. First ... the moving party [must] show a 'good reason’ why the motion was not filed during the 30–day period after the entry of judgment. ... Second ... the moving party must show that the error alleged as the basis for the motion was materially harmful."). In this regard, this Court has in the distant past considered the merits of a claim in an extraordinary motion for new trial involving alleged improper communications with the jury during a defendant's criminal trial. See Harris v. State , 150 Ga. 680, 680-685, 104 S.E. 902 (1920) (where bailiff informed jury after two days of deliberations that "the judge would keep them locked up until they did make a verdict," and jury came to guilty verdict a few minutes later, this Court concluded that the defendant had met "the requirements [for presenting] a meritorious extraordinary motion for new trial") (punctuation omitted). See also King v. State , 174 Ga. 432, 436 (1), 163 S.E. 168 (1932) (noting, in dicta citing Harris , that "[a] new trial may be granted on an extraordinary motion based upon the ground of improper communication with the jury"). And, claims of improper jury communications may implicate a defendant's constitutional right to...