State v. Harris

• Decision Date: 16 May 2023
• Docket Number: S23A0090,S23A0091
• Parties: THE STATE v. HARRIS
• Court: Georgia Supreme Court

1

THE STATE v. HARRIS

Nos. S23A0090, S23A0091

Supreme Court of Georgia

May 16, 2023

BETHEL, Justice

Lorenzo Harris was indicted for malice murder and other offenses arising from the shooting of Larry Jones. Pursuant to OCGA § 5-7-1 (a), the State appeals the trial court's pretrial rulings, which were not reduced to writing, granting Harris's motion in limine to exclude evidence of two prior incidents and his motion to suppress identification evidence. In the absence of a written order from the trial court regarding the appealed rulings, we directed the parties to brief the issue of this Court's jurisdiction. Upon review, we conclude that we have jurisdiction over these appeals, vacate the trial court's rulings, and remand for further proceedings.

1. According to the affidavit supporting the warrant for Harris's arrest, Jones was shot on March 26, 2019, in the parking

lot of an apartment building at 20 Vanira Avenue in Atlanta.^[1]Surveillance video recordings^[2] of the parking lot captured around the time of the incident show a man leaving the apartment of Shirley Ndetti and entering a red truck. The man then shot Jones in the back and drove away. Jones died as a result of his injuries. Three .40-caliber shell casings were recovered at the scene of the shooting.

During their investigation, police interviewed Ndetti and showed her a single photograph of Harris. She confirmed that the person depicted in the photograph, whom she knew as "Low," visited her apartment the night of the shooting and left shortly before Ndetti heard gunshots. The State indicated at pretrial hearings that it intends to introduce evidence at trial showing that Harris owns a red truck, as well as Harris's phone records which place him in the area around the time of the shooting.

Before trial, the State sought an order confirming the admissibility of evidence related to prior shootings, which allegedly linked Harris to Jones's shooting, as intrinsic evidence. At pretrial hearings, counsel for both Harris and the State proffered the following account of the two prior shootings. The first incident^[3] (the "Almond Incident") occurred in September 2019; the victim, Mario Almond, was robbed at gunpoint by three men while conducting a jewelry sale with Harris, and Almond alleged that Harris orchestrated the robbery. The second incident (the "Hank Aaron Incident") occurred on March 7, 2019, and arose from a shooting incident involving damage to property at 942 Hank Aaron Drive, one block from where Jones was shot. Police recovered 13 .40-caliber cartridge casings at that location, which were forensically determined to have been fired by the same gun that was used nineteen days later during the Jones shooting.^[4]

Among other pretrial filings, Harris filed a motion in limine to exclude evidence of the prior shootings as "inadmissible, prejudicial, inflammatory and not relevant." He also filed a motion to suppress Ndetti's identification of Harris, arguing that the use of a singlephotograph lineup was improper. The trial court held hearings on these motions, excluded evidence of two prior shootings, relying on OCGA § 24-4-403 ("Rule 403"), and suppressed Ndetti's identification. It is from these rulings that the State appeals.

2. Before reaching the merits of the State's appeal, we must consider whether we have jurisdiction over this appeal in the absence of a written order from the trial court with respect to the rulings at issue in this case. See Woods v. State, 279 Ga. 28, 28 (608 S.E.2d 631) (2005) ("It is incumbent upon the Court to question its jurisdiction in all cases in which jurisdiction may be in doubt."). We conclude that this appeal is properly before us.

Substantively, three oral rulings made at separate hearings are at issue here. At the first hearing on May 4, 2022, the trial court orally granted Harris's motion in limine with respect to the Almond Incident, and the State orally requested that the trial court enter a written order memorializing its ruling. At that time, the trial court indicated that it would not prepare and enter its own order, instead informing counsel that it would file a written order only when a party prepared a draft order and submitted it for the court's consideration. At the second hearing on May 27, 2022, the trial court excluded the evidence of the Hank Aaron Incident. Before doing so, the trial court asked if counsel for either Harris or the State could, either collaboratively or independently, submit a proposed order reflecting its prior rulings. Neither the State nor Harris's counsel submitted a proposed order. At the final hearing on June 9, 2022, the trial court orally granted Harris's motion to suppress Ndetti's identification, but the State did not request a written order for the ruling on the motion to suppress at that hearing.

The next day, on Friday, June 10, 2022, the State filed a "notice of need for written orders on pretrial motions," which specifically requested that the trial court enter written orders memorializing its oral rulings on Harris's motion in limine and motion to suppress "so that the State may exercise its statutory rights of appeal on those orders." In a written order entered that afternoon, the trial court acknowledged the State's request for written orders, but rather than memorializing its oral rulings, it indicated that the State's filing failed to state the statutory basis for an appeal and noted that the State would be permitted to provide an amended filing specifying the statutory basis for appeal. With the case scheduled for trial only three days later, on Monday, June 13, 2022, the State did not respond to the trial court's order and instead filed its notice of appeal after the close of business that day (the last business day before the jury was scheduled to be selected), appealing the trial court's rulings on the motion in limine excluding evidence of the prior shootings and the motion to suppress Ndetti's identification of Harris under OCGA § 5-7-1.

As an initial matter, we address whether the State waived its right to appeal by failing to comply with the trial court's requests for a proposed order. A trial court may - and routinely does - request, or even mandate, that a party submit a proposed order memorializing the court's oral rulings. But such requests will not absolve the trial court of its duty to issue written orders; the ultimate responsibility for entering a written order rests with the trial court. See Titelman v. Stedman, 277 Ga. 460, 462 (591 S.E.2d 774) (2003) (recognizing the trial court's "clear legal duty to enter a written order"); State v. Morrell, 281 Ga. 152, 153 (3) (635 S.E.2d 716) (2006) (same). Thus, the fact that the trial court in this case requested that the parties submit a proposed order and that the State failed to do so does not preclude the State's appeal.^[5]

OCGA § 5-7-1 (a) authorizes the State to appeal a trial court's order, decision, or judgment under certain circumstances in a criminal case. Ordinarily, "an order is not appealable [under OCGA § 5-7-1 (a)] unless it is in writing." Morrell, 281 Ga. at 152 (2). But an exception to this general rule arises where "the transcript affirmatively shows that the State requested the trial court to put the oral order in written form and that the trial court refused to do so." Id. See also State v. Lynch, 286 Ga. 98, 99 (686 S.E.2d 244) (2009) (authorizing the State's appeal of an oral ruling suppressing evidence where, in response to the State's request for a written order, "the trial court stated that 'the record speaks for itself' and never entered a written order"). This exception is grounded in the State's statutory right to appeal and serves to prevent the State's statutory right to appeal from being frustrated. See OCGA § 5-7-1 (a). Absent such an exception, the State's ability to exercise its right to appeal in any given case would depend on whether the trial court timely carried out its duty to file a written order, effectively leaving the State's right to appeal to the trial court's discretion. But the statute allows the trial court no such role in approving the State's appeal; the Morrell exception simply recognizes as much. Here, the focus is on the application of that exception at the intersection of the absence of a requested written order and the expiration of the right under OCGA § 5-7-1 (a) (4), (5), when jeopardy attaches.

Here, the transcripts of the pretrial hearings, reflecting the interaction between the trial court and the State, provide some context for the trial court's failure to enter written orders. But, standing alone, the transcripts are insufficient to establish the trial court's refusal to enter written orders. The record,^[6] however, affirmatively shows that the trial court refused the State's request for a written order. See Lynch, 286 Ga. at 99. Specifically, the trial court's June 10 order, which pointed to the State's failure to allege its statutory basis for appeal, affirmatively effectuates such refusal.

Although the trial court's June 10 order does not articulate an unequivocal refusal to enter written orders, the substance of the order combined with the circumstances under which the order was entered operated as a refusal. Critically, in addition to having requested a written order for the trial court's ruling on the admissibility of the Almond Incident at the hearing on May 4, the State filed its motion for written orders - which made explicit the State's intent to appeal all three of the trial court's rulings and, therefore, its immediate need for written orders - on Friday, June 10, the last business day before the trial's scheduled start date of Monday, June 13. Given the impending trial, any further delay in entering written...