State v. Cash

• Decision Date: 16 November 2015
• Docket Number: No. S15A0720.,S15A0720.
• Citation: 779 S.E.2d 603,298 Ga. 90
• Parties: The STATE v. CASH et al.
• Court: Georgia Supreme Court

298 Ga. 90

779 S.E.2d 603

The STATE

v.CASH et al.

No. S15A0720.

Supreme Court of Georgia.

Nov. 16, 2015.

Steven J. Messinger, Chief Asst. Dist. Atty., Donald R. Donovan, Dist. Atty., Paulding County District Attorney's Office, Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Matthew Blackwell Crowder, Asst. Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Department of Law, for appellant.

Andrew Santos Fleischman, Office of the Circuit Public Defender, Robert H. Citronberg, Atlanta, for appellee.

THOMPSON, Chief Justice.

The State appeals the trial court's grant of new trials to appellees, Elgerie Cash and her daughter, Jennifer Weathington, who were tried together in Paulding County Superior Court and found guilty of malice murder, felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony in connection with the shooting death of Lennis Jones.¹ Appellees, who claimed the victim accidentally shot himself, each filed a motion for new trial.

Four days prior to the scheduled hearing on the new trial motions, the State filed a motion to recuse the trial judge. The trial judge dismissed the State's recusal motion as legally insufficient without referring it to another judge and orally denied the State's request for a certificate of immediate review. The State immediately filed a notice of direct appeal, which the trial court dismissed as frivolous and dilatory. After denying the State's request for a continuance, the trial court proceeded with the motion for new trial hearing as scheduled.

Following a two-day hearing, the trial court granted both appellees' motions for new trial, finding they received ineffective assistance of counsel at trial and that the verdicts were contrary to the principles of justice and equity and decidedly and strongly against the weight of the evidence. Thereafter, the State filed a notice of appeal, appealing the trial court's orders granting appellees' motions for new trial, as well as its order denying the State's motion to recuse. For the reasons which follow, we dismiss the State's appeal of the denial of its motion to recuse and affirm the trial court's grant of new trials to appellees.²

1. Appellees contend that this Court does not have jurisdiction to review the trial court's order denying the State's motion to recuse. We agree.

(a) Appeals by the State in criminal cases are construed strictly against the State and "the State may not appeal any issue in a criminal case, whether by direct or discretionary appeal, unless that issue is listed in OCGA § 5–7–1." State v. Martin, 278 Ga. 418, 419, 603 S.E.2d 249 (2004) (emphasis in original). Accord State v. Johnson, 292 Ga. 409, 410–411, 738 S.E.2d 86 (2013) ; State v. Caffee, 291 Ga. 31, 33, 728 S.E.2d 171 (2012). Thus, in Martin, we held that the State could not appeal the denial of its motion to recuse the trial judge, because OCGA § 5–7–1, at that time, did not list such orders as appealable by the State. See Martin, 278 Ga. at 419, 603 S.E.2d 249. Accord Ritter v. State, 269 Ga. 884, 885–886, 506 S.E.2d 857 (1998) (dismissing the State's direct appeal of the denial of its motion to recuse the trial judge).

After our 2004 decision in Martin, the General Assembly amended OCGA § 5–7–1 in 2005 to permit the State to appeal "from an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy. " See OCGA § 5–7–1(a)(9) (emphasis added); Ga. Law 2005, p. 20, § 3. Here, because the State did not file its motion to recuse until after appellees' convictions and shortly before the hearing on their motions for new trial, jeopardy had attached, and the State thus does not have a right to appeal under OCGA § 5–7–1. See Harvey v. State, 296 Ga. 823, 830, 770 S.E.2d 840 (2015) (holding that jeopardy attaches "[o]nce a jury is impaneled and sworn"). See also State v. Osborne, 330 Ga.App. 688, 689–690, 769 S.E.2d 115 (2015) (holding that, in a case in which the State filed a motion to recuse the trial judge before jeopardy had attached and the trial judge denied the motion, the State's direct appeal had to be dismissed because the order denying the State's motion was interlocutory and the State did not obtain a certificate of immediate review under OCGA § 5–7–2(a) ).

(b) The State argues that, even if its appeal of the recusal order is not proper under OCGA § 5–7–1(a)(9), this Court should nonetheless exercise jurisdiction over the State's appeal of that order under the collateral order doctrine.

We must resolve this issue against the State based on the well-settled principle that "the right to appeal, even in criminal cases, is not constitutional but ‘purely a creature of statute.’ " Sosniak v. State, 292 Ga. 35, 44 n. 4, 734 S.E.2d 362 (2012) (Nahmias, J., concurring) (quoting Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) ). Accord State v. Smith, 268 Ga. 75, 75, 485 S.E.2d 491 (1997). Appeals from orders that satisfy the requirements of the collateral order doctrine are directly appealable because they are considered to come within the terms of a relevant statute that authorizes appeals from final judgments. See Sosniak, 292 Ga. at 37, 734 S.E.2d 362 (explaining that the order sought to be appealed in that case would be appealable as a "final judgment" under OCGA § 5–6–34(a)(1) if it satisfied the requirements of the collateral order doctrine); Abney, 431 U.S. at 656, 97 S.Ct. 2034 (holding that an order denying a motion to dismiss an indictment on double jeopardy grounds satisfied the requirements of the collateral order doctrine and thus could be appealed under 28 USC § 1291, which authorizes direct appeals in federal cases "from all final decisions of the district courts"). As explained by Justice Nahmias in his concurrence in Sosniak,

Although sometimes referred to as an "exception" to statutes allowing a direct appeal only from the final judgment in a case, the collateral order doctrine actually reflects a "practical rather than a technical construction" of such statutes, one that recognizes that a very "small class" of interlocutory rulings are effectively final in that they "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Sosniak, 292 Ga. at 44 n. 4, 734 S.E.2d 362 (Nahmias, J., concurring).

As explained above, an order that satisfies the requirements of the collateral order doctrine is considered to be effectively final and would be appealable because it comes within the terms of a relevant statutory right to appeal final judgments. Here, OCGA § 5–7–1, which we have repeatedly held lists the types of trial court rulings that the State may appeal, see Johnson, 292 Ga. at 410–411, 738 S.E.2d 86, does not provide for appeals by the State from final judgments. Moreover, although OCGA § 5–6–34(a)(1) authorizes appeals from "all final judgments," the State has no right to appeal under OCGA § 5–6–34 or any other provision of the Appellate Practice Act, see OCGA §§ 5–6–30 to 5–6–51, "as that Act grants the right of appeal only to ‘either party in any civil case and the defendant in any criminal proceeding.’ " Smith, 268 Ga. at 76, 485 S.E.2d 491 (quoting OCGA § 5–6–33(a)(1) ). Further, OCGA § 5–6–33(b) says that "[t]his Code section shall not affect Chapter 7 of this title," showing that the General Assembly was well aware of the statutory scheme of appeals that it had created for the State and that it intended for the State's right to appeal to be governed by Chapter 7 of Title 5.

For these reasons, the State has no right to appeal the order denying its motion to recuse under the collateral order doctrine even if the order were determined to satisfy the requirements of the doctrine. Accord Osborne, 330 Ga.App. at 691–692, 769 S.E.2d 115 (holding that the State's appeal of the denial of its motion to recuse was not appealable under the collateral order doctrine and that to apply the doctrine "would render meaningless those parts of the existing statutory scheme which govern the state's appeal of the denial of a motion to recuse a judge").

(c) Finally, because there is no constitutional right to appeal, there is no merit to the State's argument that it violates its right to due process to deny it an opportunity to appeal the denial of its recusal motion. See Sosniak, 292 Ga. at 44 n. 4, 734 S.E.2d 362 (Nahmias, J., concurring); Smith, 268 Ga. at 75, 485 S.E.2d 491. See also South Carolina v. Katzenbach, 383 U.S. 301, 323–24, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (holding that the State of South Carolina was not a "person" under the Due Process Clause of the Fifth Amendment).

For the foregoing reasons, we dismiss the State's appeal of the trial court's order denying its motion to recuse.³

2. The State claims that the trial court erred in granting the appellees' motions for new trial based on the "general grounds." See OCGA §§ 5–5–20 and 5–5–21.⁴

(a) The State first argues that the trial court erred in failing to rule on the general grounds of appellees' motions for new trial before it heard evidence—which was relevant to appellees' claims of ineffective assistance of trial counsel—at the motion for new trial hearing that was not presented to the jury. The State cites no authority for its proposed rule, and there is no such requirement in the statutory provisions that govern motions for new trial. See OCGA §§ 5–5–1 to 5–5–51. Further, the General Assembly has provided grounds for motions for new trial that do not require new evidence, see OCGA §§ 5–5–20and 5–5–21 (the general grounds), and some grounds that do or may require new evidence, see...