Rhyne v. State, s. A93A0505
| Decision Date | 24 June 1993 |
| Docket Number | A93A0999,Nos. A93A0505,s. A93A0505 |
| Citation | 434 S.E.2d 76,209 Ga.App. 548 |
| Parties | RHYNE v. The STATE (Two cases). |
| Court | Georgia Court of Appeals |
Donaldson & Bell, George P. Donaldson III, Reginald J.R. Bell, Jr., Albany, for appellant.
Britt R. Priddy, Dist. Atty., Johnnie M. Graham, Asst. Dist. Atty., for appellee.
Defendant Walter York Rhyne was indicted and tried for murder. At the conclusion of the State's evidence and the conclusion of all evidence, defendant moved for directed verdict of acquittal. While the judge was considering the State's motion for mistrial, defendant again moved for directed verdict. Each time defendant's motion was denied. Ultimately, the judge declared a mistrial because it appeared that the jury was hopelessly deadlocked. Two weeks after mistrial was declared, defendant filed a motion for directed verdict notwithstanding mistrial. The hearing on the motion was assigned to the judge who tried the case. Before the motion came on for hearing, a different judge entered an order of nolle prosequi in the case in response to a motion brought by the State on the ground that defendant had been re-indicted. The order was entered without the defendant's consent or knowledge.
The trial judge then denied defendant's motion for directed verdict notwithstanding mistrial, noting that the merits of the motion were not reached but that the motion was denied because if the nolle prosequi was properly entered, the case was no longer pending and the trial court had no authority to grant defendant's motion. In the order denying defendant's motion, the trial court granted a certificate of immediate review and attempted to "certify" to this court questions concerning whether a motion for directed verdict notwithstanding mistrial may be granted and whether consideration of such a motion is precluded by the entry of nolle prosequi. Defendant filed with this court an application for interlocutory review and we granted the application. Defendant then filed an enumeration of error in which he reframed the questions posed by the trial court but then enumerated as error the trial court's denial of judgment of acquittal on the ground that the entry of nolle prosequi without his consent and while a motion for directed verdict of acquittal notwithstanding mistrial was pending has the effect of acquittal. This appeal is Case No. A93A0505.
After mistrial, defendant was re-indicted on a three-count indictment charging defendant with malice murder, felony murder and voluntary manslaughter. Defendant filed a plea in bar and motion to dismiss the new indictment. Defendant's motion was denied and he filed an appeal with this court. This appeal is Case No. A93A0999. We granted defendant's motion to consolidate the two appeals.
1. First we note that, unlike the Georgia Supreme Court which is authorized by the Georgia Constitution to consider questions of law from any state or federal appellate court (Ga. Const.1983, Art. VI, Sec. VI, Par. V), this court is a court for the correction of legal errors on appellate and certiorari jurisdiction (Ga. Const.1983, Art. VI, Sec. V, Par. III). Consequently, we cannot address the questions posed in the trial court's order and certificate of immediate review. The only issue before us on appeal is the error enumerated by defendant: whether the trial court erred in denying defendant's motion for directed verdict of acquittal notwithstanding mistrial because the entry of nolle prosequi without defendant's consent while such a motion was pending has the effect of acquittal.
Pursuant to OCGA § 17-8-3, before a case has been submitted to a jury the prosecutor may enter a nolle prosequi with the consent of the court, but after the case is submitted to the jury "a nolle prosequi shall not be entered except by the consent of the defendant." If it is entered after submission to the jury and without defendant's consent, a nolle prosequi is equivalent to an acquittal on a plea of former jeopardy. Jones v. State, 55 Ga. 625(2) (1876). The Jones opinion goes on to say, however, that retrial on a subsequent indictment in such a situation would not be barred in the case of mistrial. Id. at (3). See also Hobbs v. State, 229 Ga. 556, 192 S.E.2d 903 (1972); Rhodes v. State, 200 Ga.App. 193(6), 407 S.E.2d 442 (1991). Thus, a properly granted mistrial removes the case from the jury and a nolle prosequi entered after mistrial, even without the consent of defendant, does not have the effect of acquittal. The record supports the trial judge's conclusion that the jury was hopelessly deadlocked and thus termination by declaration of mistrial was proper. See OCGA § 16-1-8(e)(2)(C). Defendant was not entitled to judgment of acquittal on the ground that the entry of nolle prosequi in these circumstances had the effect of acquittal.
Once a nolle prosequi is entered in a case, the prosecution and all incidents to it are at an end. Merrill v. State, 201 Ga.App. 671(2), 411 S.E.2d 750 (1991); State v. Davis, 196 Ga.App. 785, 397 S.E.2d 58 (1990). Consequently, the defendant's motion became moot. Defendant nevertheless argues that the State should not be permitted to enter a nolle prosequi, thus terminating the case and permitting retrial on a subsequent indictment, where the defendant is entitled to a directed verdict pursuant to a post-mistrial motion. We reject defendant's premise that such relief exists pursuant to Georgia law and hereby disapprove any previous case law that implies otherwise.
No statutory provision for judgment n.o.v. exists in the statutory criminal law of Georgia and the Supreme Court, in Wilson v. State, 215 Ga. 775(1), 113 S.E.2d 607 (1960), declined to create such a remedy judicially. In State v. Bilal, 192 Ga.App. 185, 384 S.E.2d 253 (1989), this court noted that the legislature's creation, in 1971, of a right to move for directed verdict during trial, codified at OCGA § 17-9-1, "did not affect the holding in Wilson, supra, for the legislature did not create a right to judgment notwithstanding the verdict in a criminal case." Bilal, 192 Ga.App. at 186, 384 S.E.2d 253. OCGA § 17-9-1 permits a defendant to seek a directed verdict of acquittal only during trial. By contrast, the Federal Rules of Criminal Procedure permit a defendant to seek such relief not only after the return of a verdict of guilty (F.R.Cr.P. 29(b)) but also after mistrial (F.R.Cr.P. 29(c)). If the Georgia legislature wishes to create the right to seek post-conviction or post-mistrial judgment of acquittal it may, following the lead of federal statutory law, do so. At this time, however, the law of Georgia provides for neither a motion for judgment of acquittal notwithstanding the verdict nor a motion for judgment of acquittal notwithstanding mistrial.
We are aware of only two opinions in Georgia law in which a Georgia appellate court has reviewed a trial court's denial of a motion for acquittal on the grounds of the insufficiency of the evidence in a case which ended in mistrial. In King v. State, 246 Ga. 386(4), 271 S.E.2d 630 (1980), the Georgia Supreme Court concluded there was no merit to defendant's argument that his motion for directed verdict of acquittal notwithstanding mistrial was erroneously denied in a previous trial of the charges against him. The Supreme Court did not address the issue of whether such relief exists in Georgia nor the issue of whether it had jurisdiction to consider an error allegedly made in a previous trial of the case. The only other opinion of the Georgia Supreme Court of which we are aware in which the defendant appealed the denial of his motion for judgment of acquittal notwithstanding mistrial also did not address the issue of a criminal defendant's right to such a judgment and, in fact, did not rule on the denial of the motion but, instead, affirmed the trial court's ruling on the ground that it did not abuse its discretion in declaring mistrial despite defendant's proffered waiver of a unanimous verdict. Glass v. State, 250 Ga. 736, 300 S.E.2d 812 (1983). In Phillips v. State, 133 Ga.App. 461, 211 S.E.2d 411 (1974), the defendants moved for directed verdict of acquittal during trial and also after mistrial...
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