State v. James

• Citation: 292 Ga. 440,738 S.E.2d 601
• Decision Date: 18 February 2013
• Docket Number: No. S12A1650.,S12A1650.
• Parties: The STATE v. JAMES et al.
• Court: Georgia Supreme Court

292 Ga. 440

738 S.E.2d 601

The STATE

v.JAMES et al.

No. S12A1650.

Supreme Court of Georgia.

Feb. 18, 2013.

Paul L. Howard, Jr., Dist. Atty., Peggy Ann Katz, Asst. Dist. Atty., Paige Reese Whitaker, Deputy Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, for appellant.

Raina Jeager Nadler, Roswell, Barbara M. Collins, Riverdale, for appellee.

BENHAM, Justice.

The State has filed a timely direct appeal from the trial court's grant of new trials to appellees Christopher James and Herman Lawson, co-indictees who were convicted in 2008 of malice murder in separate jury trials in the Superior Court of Fulton County. See OCGA § 5–7–1(a)(7). After conducting a de novo review of the trial court's ruling, we conclude the trial court erred and reverse the trial court's order granting new trials to James and Lawson.

Appellees James and Lawson and two other men were charged in an indictment with the August 2005 murders of Jeremiah Ingram and Fatima Fisher. James and Lawson were convicted of murder in separate trials; another co-defendant was acquitted in a trial that took place after the trials of appellees; and the fourth co-indictee pled guilty to a charge of voluntary manslaughter. Both appellees filed timely motions for new trial and after conducting a hearing on appellee James's motion, the trial court issued an order in September 2011 that granted new trials to both appellees. The trial court based its grant of new trials on the unavailability at appellees' trials of a piece of evidence that was available at the trial of the co-indictee who was acquitted. The evidence at issue is the second page of the three-page investigative summary compiled by the Office of the Fulton County Medical Examiner.¹ The trial court called the missing page a “critical piece of evidence” and ruled that new trials were required. The trial court reasoned that, without the missing page, appellees were denied the ability to better fix the time of death, an important factor in the trials, and were unable to stress in their closing arguments and during their cross-examination of the only eyewitness who testified, that the deaths occurred anywhere from 30 [292 Ga. 441]to 90 minutes prior to the discovery of the bodies.² Although the trial court's order does not cite Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), based on our review of the amended motions for new trial and the transcript of the hearing on James's motion for new trial, we conclude that the trial court granted the motion on a special ground: that appellees' lack of access to the missing page was a Brady violation.

1. Appellees maintain the trial court did not abuse its discretion in granting them new trials. While the first grant of a new trial on the general grounds is reviewed for abuse of discretion (see OCGA § 5–5–50), we review de novo the trial court's first grant of a new trial on a special ground involving a question of law. O'Neal v. State, 285 Ga. 361, 362–363, 677 S.E.2d 90 (2009). See also State v. Kelly, 290 Ga. 29, 30–31, 718 S.E.2d 232 (2011); State v. Clements, 289 Ga. 640(1), 715 S.E.2d 59 (2011). The grant of new trials to James and Lawson was based on a special ground and therefore will be reviewed de novo.

2. Both appellees contended in their respective amended motions for new trial that the State violated Brady v. Maryland, supra, by suppressing evidence favorable to the accused, i.e., the second page of the medical examiner's report, that could be used to impeach the testimony of the sole eyewitness. To prevail on their Brady claim, appellees were required to show four factors: (1) the State, including any part of the prosecution team, possessed evidence favorable to the defendant; ³ (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) a reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed to the defense. Schofield v. Palmer, 279 Ga. 848, 852, 621 S.E.2d 726 (2005). Pretermitting a discussion on whether the medical examiner is part of the prosecution team ⁴ and whether a reasonable probability exists that the outcome of the trial would have been different had the defense received the missing page, is the fact that James and Lawson did not establish that the missing page could not have been obtained with any reasonable diligence. Evidence is not regarded as “suppressed” by the government when the defendant has access to the evidence before trial by the exercise of reasonable diligence. U.S. v. Senn, 129 F.3d 886, 892–893 (7th Cir.1997), abrogated on other grounds by U.S. v. Vizcarra, 668 F.3d 516 (7th Cir.2012). James and Lawson had in their possession before trial the medical examiner's report, the clearly-marked pagination of which ⁵ put them on notice that the report was three pages long and that they had not received a complete report since they had received only two pages. The defense team for the third co-indictee, which had received the same report received by James and Lawson, realized that a page was missing from the report and obtained the missing page prior to the trial of the third co-indictee. That their co-indictee's defense team recognized that a page was missing and obtained it defeats appellees' claim of suppression. U.S. v. Pelullo, 399...