State v. Murray, S10M0390.

• Decision Date: 03 December 2009
• Docket Number: No. S10M0390.,S10M0390.
• Citation: 687 S.E.2d 790,286 Ga. 258
• Parties: The STATE v. MURRAY.
• Court: Georgia Supreme Court

687 S.E.2d 790

286 Ga. 258

The STATE v. MURRAY.

No. S10M0390.

Supreme Court of Georgia.

December 3, 2009.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Bettieanne C. Hart, Assistant District Attorneys, for appellant.

Brian A. Hobbs, Canton, Leighton R. Berry, Jr., for appellee.

THOMPSON, Justice.

The State sought and this Court granted an emergency supersedeas with regard to a contempt order issued against an assistant district attorney in the underlying murder prosecution. In light of the dissenting opinion, which posits that this Court does not have jurisdiction because the finding of contempt bears no relation to the murder case, we are compelled to re-examine our longstanding order declaring that all murder cases, and all interlocutory appeals in murder cases, be transferred to this Court. State v. Thornton, 253 Ga. 524(1), 322 S.E.2d 711 (1984). We conclude that we do have jurisdiction of this appeal and that the dissenters' position is contrary to Thornton and its progeny.

1. In Thornton, this Court instructed the Court of Appeals to transfer all murder cases, "and all pre-conviction appeals in murder cases," to this Court. Over the next 25 years, this Court, and the Court of Appeals, adhered to this instruction, whether or not "the judgment at issue is pre-conviction,"¹ or the "appeal arises from a collateral order."² Thus, if "the murder count of the indictment remains pending below, jurisdiction of [the] appeal lies in this Court."³

The proper focus is "on the nature of the underlying action."⁴ If the underlying action is a murder case, this Court has jurisdiction of the appeal, regardless of whether the order being appealed is based on facts having some bearing on the underlying criminal trial. Thus, this Court exercised jurisdiction in a murder case where a newspaper reporter appealed from an order ruling that the reporter's qualified privilege was inapplicable.⁵ Likewise, we exercised jurisdiction where, in the midst of a murder prosecution, a television station was denied media access.⁶

Although the appeal in this case arises from a collateral order of contempt, it is undisputed that the nature of the underlying action is a criminal prosecution. It follows that the order of contempt is a matter lying within this Court's jurisdiction.

2. It now appears that the order granting the emergency motion for supersedeas was moot at the time it was entered. Accordingly, the original order is hereby vacated.

Order granting emergency supersedeas vacated.

All the Justices concur, except HINES, MELTON and NAHMIAS, JJ., who dissent.

CARLEY, Presiding Justice, concurring.

In State v. Thornton, 253 Ga. 524(1), 322 S.E.2d 711 (1984), this Court ordered the Court of Appeals "`to transfer to the Supreme Court all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder, and all pre-conviction appeals in murder cases ....'[Cit.]" (Emphasis supplied.) Justice Nahmias views that order as an exercise of our constitutional certiorari jurisdiction. Furthermore, the language of Ga. Const. of 1983, Art. VI, Sec. VI, Par. III(8), placing appellate jurisdiction in this Court over "[a]ll cases in which a sentence of death was imposed or could be imposed[,]" may be broad enough to include appeals in all murder cases.

Regardless of the precise basis for the order in Thornton, it has provided a practical, bright-line rule which continues to serve both Georgia appellate courts well. As the controlling precedent cited in the majority opinion makes clear, Thornton includes all collateral orders which are entered in the context of a pending murder prosecution. Exclusion of certain contempt orders on the ground that they do not sufficiently affect the underlying murder trial would destroy the benefits of Thornton's bright-line rule. Because there exists absolutely no basis under our precedent to transfer this appeal from a contempt order in the context of a pending murder prosecution, I fully concur in the majority opinion.

MELTON, Justice, dissenting.

This Court's jurisdiction is strictly limited by our state's constitution. In its opinion, the majority judicially rewrites our constitutionally-mandated jurisdiction to include the present case. Because this Court lacks the authority to edit our constitutional jurisdiction in this way, I must respectfully dissent, as I did to the original order which is now being vacated.⁷

The record shows that, on October 6, 2009, the trial court issued an oral order finding Assistant District Attorney Linda Dunikoski in contempt of court and ordering her to pay a $100 fine for violating certain agreed-upon rules of conduct in that particular courtroom. More specifically, the trial court found that Dunikoski disrespectfully argued with the trial court after it entered a certain ruling in a murder case Dunikoski was prosecuting. After discovering that Dunikoski had not paid the fine, apparently at the direction of the District Attorney, the trial court reduced the order to writing on November 12, 2009, ordering Dunikoski "to comply with [the] original order entered on October 6, 2009 by close of business on December 14, 2009." The trial court also ordered that Dunikoski be taken into custody and set a $100 signature bond as part of the November 12, 2009 order. In response to this order, the District Attorney's office filed the subject emergency motion for supersedeas in this Court.

Nothing in this factual scenario triggers this Court's jurisdiction. "Cases involving contempt of court are not within this Court's appellate jurisdiction." Nowlin v. Davis, 278 Ga. 240, n. 1, 599 S.E.2d 128 (2004). This is true because "[u]nder article 6, section 2, paragraph 5, of the [Georgia] constitution ..., the Supreme Court has jurisdiction of certain enumerated cases; and [a contempt action is] not ... within such enumerated cases." Vines v. State, 194 Ga. 442, 21 S.E.2d 853 (1942).

The mere fact that a finding of contempt is issued during a murder trial does not alter this constitutionally-imposed jurisdictional limitation. This is evident from this Court's finding in Holmes v. State, 224 Ga. 553, 567(24), 163 S.E.2d 803 (1968), that "[i]t is not necessary to consider [the] ground [that defense counsel had been held in contempt of court] because the contempt proceeding is separate from [the] appeal, which involves only the [murder] trial of the appellant." As in Holmes, the trial court's finding of contempt in this matter has no relation to the underlying murder case. Substantively and legally, it is a separate matter based on facts which have no bearing on the criminal trial during which Dunikoski's behavior occurred. In fact, the contempt judgment in this case is a personal judgment against Dunikoski, and neither the State nor Murray are proper parties to this appeal. See note 7, supra. Therefore, this Court has no jurisdiction over this matter.⁸

None of the cases cited by the majority changes this result. As an initial matter, this case falls outside of the general rule that "the appellate court with subject-matter jurisdiction of the appeal from a judgment has appellate subject-matter jurisdiction of a contempt action in which enforcement of the judgment is sought." Rogers v. McGahee, 278 Ga. 287, 288(1), n. 1, 602 S.E.2d 582 (2004). All that is presently before this Court is a judgment of contempt against an Assistant District Attorney for which this Court does not have original jurisdiction, not a judgment of murder against a defendant or a pre-conviction appeal involving the crime of murder. For this reason, State v. Thornton, 253 Ga. 524(1), 322 S.E.2d 711 (1984) (pre-conviction appeals in murder cases such as appeal of motion to suppress evidence must be reviewed by Supreme Court), has no application in this context.

Furthermore, the remaining cases cited by the majority are equally unpersuasive and easily distinguishable. The bulk of these cases deal with appeals in murder cases which directly affect the rights of the defendant and are, therefore, directly related to the murder trial. In both Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007) and Langlands v. State, 280 Ga. 799, 633 S.E.2d 537 (2006), the defendants, who were charged with multiple crimes, received a new trial on their murder and felony murder charges, but not the remaining charges against them (such as aggravated assault). This Court found that it could consider appeals of the remaining charges because the murder charges remained pending below. In Sanders v. State, 280 Ga. 780, 631 S.E.2d 344 (2006), the State brought two murder indictments against the defendant, one which sought the death penalty and one which did not. The State subsequently entered an entry of nolle prosequi to the indictment not seeking the death penalty and the defendant was allowed to appeal the propriety of the State's action as it involved his indictment for murder. Again, this matter was directly related to the murder trial and the rights of the defendant. Therefore, a brief review of the facts in these cases, which the majority omits, shows that they simply have no application to this matter.

The majority's reliance on In re Paul, 270 Ga. 680, 513 S.E.2d 219 (1999) and WALB-TV v. Gibson, 269 Ga. 564, 501 S.E.2d 821 (1998) is also misplaced for similar reasons. Both of these cases are based on the collateral order doctrine which allows the direct appeal of a collateral order "because the issue is substantially separate from the basic issues presented in the complaint, an important right may be lost if review had to await final judgment, and nothing further in the underlying action can affect the issue on appeal." Paul, supra, 270 Ga. at 683, 513 S.E.2d 219. In Paul, a newspaper reporter had been subpoenaed to testify regarding unpublished information obtained during an interview with a defendant currently on trial for murder. The reporter asserted privilege under OCGA §...