Watts v. State, No. A03A0929.

• Decision Date: 12 May 2003
• Docket Number: No. A03A0929.
• Citation: 582 S.E.2d 186,261 Ga. App. 230
• Parties: WATTS v. The STATE.
• Court: Georgia Court of Appeals

582 S.E.2d 186

261 Ga. App. 230

WATTS v. The STATE.

No. A03A0929.

Court of Appeals of Georgia.

May 12, 2003.

King & King, David H. Jones, Atlanta, for appellant.

Peter J. Skandalakis, Dist. Atty., Anne C. Allen, Asst. Dist. Atty., for appellee.

ELDRIDGE, Judge.

This is the third appearance of this case before us. In Watts v. State, 246 Ga.App. 367, 541 S.E.2d 41 (2000), we affirmed a Carroll County jury's verdict finding Watts guilty of rape and incest. In so doing, this Court determined, inter alia, that the trial court did not err in denying Watts' motion to suppress a search warrant for his hair and blood which resulted in DNA evidence against him, because (1) Watts' motion to suppress alleged only that the warrant "omitted material facts" from the affidavit in support of the search warrant, without putting the State on notice as to what specific facts were allegedly omitted so as to permit the State to address the allegations, and (2) Watts failed to produce evidence or make an offer of proof as to allegations of material factual omissions.¹

The Supreme Court of Georgia granted certiorari and reversed the decision of this Court.² While explaining the eminently reasonable principle that a defendant does not bear the initial burden to produce evidence in support of his claims of material factual omissions in an affidavit, the Supreme Court went further and held that a defendant does not even have to plead in the written motion the material facts allegedly omitted from the affidavit. Inexplicably merging pleading requirements with evidentiary burdens, the Court concluded: "the existence of such a pleading requirement cannot be implied from the law of this state, as it would be contrary to OCGA § 17-5-30(b)³ and the controlling principle that the initial burden of evidentiary production is always on the State."⁴ Thereafter, overruling,

Bowe v. State, 201 Ga.App. 127, 130(3), 410 S.E.2d 765 (1991); Ferrell v. State, 198 Ga.App. [270, 401 S.E.2d 301 (1991)]; State v. Mason, 181 Ga.App. 806, 812(4), 353 S.E.2d 915 (1987); Amerson v. State, 177 Ga.App. 97, 100(5), 338 S.E.2d 528 (1985); Ross v. State, 169 Ga.App. 655, 657, 314 S.E.2d 674 (1984); Nutter v. State, 162 Ga.App. 349, 350, 291 S.E.2d 423 (1982) and any other case which requires the defendant specifically to allege that information was deliberately or recklessly omitted from an affidavit and withheld from the magistrate[,]⁵

the Supreme Court of Georgia held that a conclusory statement such as the one found in Watts' motion to suppress, i.e.,

the affidavit contains material omissions that undermine the validity of the warrant[,]⁶ is sufficient to put the burden on the State to "show[] that no material information was omitted or that any such omissions were not deliberate or reckless."⁷ The Court held that such burden could be met through the introduction of the affidavit and warrant.⁸ Since the State failed to introduce the affidavit and warrant at the hearing on Watts' motion to suppress, the Supreme Court determined that the trial court erred in denying such motion.

This is, to say the least, a curious result. The above conclusory statement approved by the Supreme Court does not challenge the facial validity of an affidavit and resulting warrant. Rather, the facts alleged as omitted purportedly render an affidavit improper, thereby, as the Supreme Court put it, "undermining" the validity of an otherwise valid warrant.⁹ And, in such case, tendering the affidavit and warrant is insufficient, since it is not the documents, themselves, that are being challenged but the warrant's validity in light of allegedly omitted information—information that the affidavit and resulting warrant will obviously not contain.

In that regard, the State can hardly be expected to prove a negative, i.e., that "no information was omitted" from the affidavit. Nor can the State be expected to know what another party claims is omitted information. This is why, under earlier Supreme Court precedent—and for the last 37 years,¹⁰

[t]he motion to suppress must "state facts," OCGA § 17-5-30, not conclusions, Franks v. Delaware,"¹¹ showing that the warrant was invalid. ... Where[, as here,] the defendant relies upon grounds other than the three statutory grounds in attacking a search conducted pursuant to a warrant, stating the requisite facts renders the motion viable, and results in the necessity for a hearing.¹²

Clearly, the statement, "the affidavit contains material omissions that undermine the validity of the warrant," is not a fact. If it were, there would be no further issue. The statement is the legal conclusion at which a defendant hopes the trial court will arrive after discerning the "facts" in support thereof. And pleading such legal conclusion, alone, is insufficient under the statute. So it was that, when he was a distinguished member of this Court, Justice Carley stated,

The trial court correctly relied upon Cadle v. State, 131 Ga.App. 175, 205 S.E.2d 529 (1974) and concluded that appellant's motion to suppress did not state facts showing that the search and seizure were illegal. Rather the motion contains only a series of conclusions unsupported by statements of fact. Accordingly, the motion did not meet the statutory requirements of OCGA § 17-5-30(b), and the trial court did not err in its disposition of the motion. [Cits.] ¹³

Thus, while the State's evidentiary burden to prove a warrant valid vel non goes without saying, it does not follow that such evidentiary burden negates a defendant's statutory burden to plead facts showing wherein the search and seizure were unlawful, thereby raising an issue for the State to rebut with its proof.

Before the state's burden of proving a lawful seizure arises, the defendant must set forth "... facts showing wherein the search and seizure were unlawful." Code Ann. § 27-313(b) [(now OCGA § 17-5-30(b))]. This the defendant did not do, so that the trial court did not err in denying his demand for proof by the state.¹⁴

Notably, the Supreme Court of Georgia has overruled neither Smith v. Hopper and State v. Slaughter, as cited above, nor the extensive progeny engendered by these two cases over the last twenty years.¹⁵ The failure to do so would appear to contradict the conclusory allegations permitted by the Court's Watts decision and confuse the Supreme Court's earlier bright-line (or, at least, brighter line) interpretation of OCGA § 17-5-30(b) as requiring that a motion to suppress contain specific "facts" showing how a search and seizure were allegedly unlawful.

However, we will not further question the current wisdom. Indeed, where pleading is concerned, the subtle distinctions between the sins of commission and the sins of omission have eluded the soundest of judgments. So, as we were required to do, in Watts v. State, 253 Ga.App. 227, 558 S.E.2d 791 (2002), this Court made the ruling of the Supreme Court of Georgia our own.

Upon return of the remittitur to the superior court, Watts filed a plea in bar as to the motion to suppress. He claimed that, because the Supreme Court of Georgia determined that "the trial court erred in denying the motion to suppress[,]" any further litigation on the motion to suppress was precluded by the doctrine of "collateral estoppel."

A hearing was held on the plea in bar wherein, as best we can decipher, the State argued that, because the suppression issue was decided solely on the basis of attorney argument and no evidence was introduced, an "evidentiary hearing" as contemplated by the suppression statute, OCGA § 17-5-30, was never held; that, under such statute, the trial court was required to "receive evidence" during a hearing on a motion to suppress, which was not done in this case.¹⁶ Thus, the doctrine of collateral estoppel did not preclude holding an evidentiary hearing on Watts' motion to suppress, since such an evidentiary hearing had never been held before. In addition (and again as best we can discern it), the State claimed that the sole issue addressed by the Supreme Court of Georgia's decision in Watts was simply whether a hearing was required and that the Court did not speak to the merits of Watts' motion to suppress, making inapplicable any bar to relitigation of the suppression motion:

[Prosecutor:] But the issue that they [(Supreme Court)] were specifically saying was whether or not what he [(Watts)] did forced the issue into a hearing and that's what they [(Supreme Court)] reversed on is the Court of Appeals saying that it didn't require a hearing.

The trial court denied the plea in bar, presumably intending to hold an "evidentiary" hearing on the motion to suppress wherein the State could correct its earlier error and tender the affidavit and warrant. Watts filed the instant appeal from that ruling. Held:

1. In Watts v. State, 274 Ga. at 376, 552 S.E.2d 823, the Supreme Court of Georgia determined that the State did not meet its burden of evidentiary production when it failed to tender the affidavit and resulting search warrant:

The prosecutor attempted to meet the State's evidentiary burden without ever introducing any evidence by making arguments regarding the immateriality of the omitted information.... The warrant and supporting affidavit are necessary to establish the standard against which Watts' allegations [of omitted facts] were required to be balanced. Because the prosecution failed to present any evidence to meet its burden of producing evidence, the trial court erred in denying the motion to suppress.¹⁷

This sufficiency of the evidence determination that the State failed to meet its burden to prove the warrant was valid is a ruling on the merits of Watts' motion to suppress evidence obtained as a result of an invalid warrant. Thus, the issue is res judicata, and the motion to suppress may not be relitigated by the State.¹⁸ Under these circumstances, the trial court's denial of Watts' plea in bar, which ruling permitted

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