State v. Rowe

• Decision Date: 18 May 2020
• Docket Number: S20A0504
• Citation: 308 Ga. 806,843 S.E.2d 537
• Parties: The STATE v. ROWE.
• Court: Georgia Supreme Court

308 Ga. 806

843 S.E.2d 537

The STATE

v.ROWE.

S20A0504

Supreme Court of Georgia.

Decided: May 18, 2020

Rebecca Jean Dobras, Assistant Attorney General, Tina Michelle Piper, Assistant Attorney General, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Attorneys for the Appellant.

Adam Sean Levin, Northeast Georgia Regional Capital Defender, 220 College Avenue, Suite 500, Athens, Georgia 30601, Erin Leigh Wallace (McQueen), Western Circuit Public Defender's Office, 440 College Avenue, Suite 220, Athens, Georgia 30601, Franklin J. Hogue, Hogue Hogue Fitzgerald & Griffin, LLP, P.O. Box 1795, Macon, Georgia 31201, Attorneys for the Appellee.

Gabrielle Amber Pittman, Office of the Georgia Capital Defender, Middle Georgia Regional Office, P.O. Box 18122, Macon, Georgia 31209, Attorneys for the Amicus Appellee.

Boggs, Justice.

This case is an appeal by the Department of Corrections in the pending death penalty prosecution against Donnie Rowe, Jr., who is accused of double murder during a prison escape. Specifically, the case concerns an order, as modified, by the trial court directing that all records of visits from Rowe's defense team to various prisoners be placed under seal in the legal department of the DOC rather than being maintained in the individual inmates’ files. The DOC argues that the order is void because the trial court lacked the inherent authority or personal or subject matter jurisdiction to issue it and because, even if the trial court had the authority to do so, issuing it constituted an abuse of discretion. Additionally, this Court directed the parties to evaluate whether this Court has jurisdiction in light of the provision in OCGA § 5-7-1 limiting appeals by "the State of Georgia" in "criminal cases." For the reasons set forth below, we conclude that this Court has jurisdiction over this appeal, and we affirm in part and reverse in part the trial court's order regarding the visitation records.

1. Rowe and Ricky Dubose have been indicted for murder and related crimes in connection with the killing of two DOC officers during an escape from a prison van. As part of Rowe's defense, his lawyers and expert witnesses need to interview various inmates, including Rowe and Dubose. The trial court issued several ex parte orders for the defense team to gain access to specific inmates. On August 27, 2019, after Rowe discovered that these ex parte orders were being kept unsealed in the inmates’ files, Rowe filed, under seal without serving the DOC, Ex Parte Motion No. 11 to enforce the confidential nature of those visitation orders. Later that same day, the trial court, without prior notice to the DOC, issued an order directing that all ex parte visitation orders be placed in the inmates’ files under seal, filed elsewhere under seal, or destroyed.

On September 10, 2019, the DOC sent via e-mail to the trial court a motion to vacate or reconsider this August 27 order.¹ On September 17, 2019, a hearing was held on the DOC's motion to vacate, with counsel for the DOC present.² On October 3, 2019, the trial court filed a Modified Order on Defendant's Ex Parte Motion No. 11, in which the court directed that "any ex parte Orders and the accompanying documents required to perfect the Orders" must be kept under seal in the legal department of the DOC, directed that "[t]he only document to be included in the institutional file of any inmate shall be a form indicating that additional documents exist under seal in the legal department," and directed that the parties should attempt to reach an agreement on proposed language for a document regarding the visitation records to be placed in inmates’ files.³

On October 9, 2019, the DOC sent the trial court a notice of appeal, but it was not filed by the clerk at that time.⁴ On October 15, 2019, a hearing was held, without any notice to the DOC, in which the trial court and Rowe discussed the DOC's notice of appeal and in which Rowe filed a new motion, Ex Parte Motion No. 15, seeking an ex parte order allowing a specific expert witness access to him at the prison.⁵ On October 16, 2019, the DOC's Non-Party Notice of Appeal, which the trial judge had previously received, was filed by the clerk. Another hearing, this time with notice to and with the appearance of counsel for the DOC, was held on October 28, 2019. Also on October 28, 2019, the DOC filed an Amended Non-Party Notice of Appeal, which again specified only the Modified Order on Defendant's Ex Parte Motion No. 11 as the subject matter of appeal but which added a request that the portions of the record sent up on appeal include any matters pertaining to Ex Parte Motion No. 15 in addition to matters pertaining to Ex Parte Motion No. 11.

The trial court has announced that it will not suspend the trial proceedings while this appeal is pending. The DOC filed in this Court a motion for supersedeas, but this Court denied it.⁶

2. (a) We first address the question posed by this Court to the parties regarding this Court's jurisdiction. See Hourin v. State , 301 Ga. 835, 836-837 (1), 804 S.E.2d 388 (2017) ("[I]t is incumbent upon this Court to inquire into its own jurisdiction even when not contested by the parties."). This Court's concern arose out of OCGA § 5-7-1 et seq., which limits the subject matter that may be appealed by "the State of Georgia" in "criminal cases," which do not include the issue being appealed by the DOC here. See State v. Cash , 298 Ga. 90, 91 (1) (a), 779 S.E.2d 603 (2015) ("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.’ " (quoting State v. Martin , 278 Ga. 418, 419, 603 S.E.2d 249 (2004) )). We conclude that OCGA § 5-7-1 et seq. applies to appeals brought on behalf of the State by the prosecuting attorney responsible for the criminal case – usually the district attorney or solicitor and sometimes the Attorney General. See Ga. Const. of 1983, Art. VI, Sec. VIII, Par. I (d) ("It shall be the duty of the district attorney to represent the state in all criminal cases in the superior court of such district attorney's circuit and in all cases appealed from the superior court and the juvenile courts of that circuit to the Supreme Court and the Court of Appeals and to perform such other duties as shall be required by law."); OCGA § 5-7-1 (5) (B) (referring to the "prosecuting attorney"); OCGA § 15-18-6 (4), (6) (describing the prosecutorial and appellate duties of the district attorneys); OCGA § 15-18-66 (a) (3), (4) (describing the prosecutorial and appellate duties of the solicitors-general); OCGA §§ 45-15-3 (3), (5), 45-15-10 (describing the prosecutorial and appellate duties of the Attorney General). The statute does not apply to appeals by state entities and actors who have no control over prosecutions, like the DOC here. Admittedly, there is more occasion for some involvement by the DOC in criminal cases arising out of crimes committed in prisons, because the DOC remains responsible for the prison and the defendant after a crime is committed, because prison staff and inmates will often be witnesses, and because the DOC is required to fund the court costs in such cases under OCGA § 42-5-3. However, the prosecutions of such criminal cases are ultimately controlled by the prosecuting attorneys, and we therefore conclude that only the appeals they file are subject to the appeal limitations in OCGA § 5-7-1 et seq.

(b) Rowe further argues that this Court lacks jurisdiction because the order at issue is not a final judgment and therefore is appealable only through the interlocutory appeal process set forth in OCGA § 5-6-34 (b). The DOC argues that the trial court's order is effectively a permanent injunction, which would be immediately appealable under OCGA § 5-6-34 (a) (4) ; in the alternative, the DOC argues that the order is immediately appealable under the collateral order doctrine.

The collateral order doctrine applies where an order (1) resolves an issue that is "substantially separate" from the matter to be tried, (2) would result in the loss of an important right if review had to wait for a final judgment in the overall case, and (3) completely and conclusively decides the issue such that nothing in the underlying action can affect it. Britt v. State , 282 Ga. 746, 748 (1), 653 S.E.2d 713 (2007).⁷ Here, (1) the sealing order is substantially separate from the criminal prosecution, (2) the DOC faces the loss of important rights because it either must violate its own regulation or face contempt, and (3) the sealing order completely and conclusively decides the issue. We conclude, accordingly, that this appeal by the DOC is indeed subject to the collateral order doctrine, whether or not it is considered an appeal of a permanent injunction. See WXIA-TV v. State of Ga. , 303 Ga. 428, 432 n.5 (1), 811 S.E.2d 378 (2018) (explaining that a modified gag order was appealable, "either because it [wa]s appealable as a final judgment under the collateral order doctrine ... or because it functionally amount[ed] to an injunction"); State v. Murray , 286 Ga. 258, 259 (1), 687 S.E.2d 790 (2009) (holding that this Court had jurisdiction over a collateral order for contempt against the prosecutor in a murder case); Fulton County v. State , 282 Ga. 570, 570-571 (1), 651 S.E.2d 679 (2007) (addressing a collateral order directing Fulton County to pay part of the defense expenses); In re Paul , 270 Ga. 680, 682-683, 513 S.E.2d 219 (1999) (addressing a collateral order to compel a non-party to disclose information in a murder case).

3. We next turn to the question of whether the trial court had the authority to address the matter contained in the order on appeal. This question is...