In the Supreme Court of Georgia
Decided: September 22, 2014
S14A1006. THE STATE v. HILL.
HINES, Presiding Justice.
This is an appeal by the State from the grant of David Hill’s extraordinary
motion for new trial following his convictions and sentencing for felony murder
and two aggravated assaults. For the reasons which follow, we reverse.
In 2002, Hill, Orlando Culler, and Trayeon White were jointly tried and
convicted of the November 18, 2001 felony murder of Alvita Waller and the
aggravated assaults of Terrell Mills and Anthony Hunter. Hill was sentenced
to life in prison for felony murder and to two probated sentences of fifteen years
for two counts of aggravated assault, to be served concurrently to each other and
consecutively to the sentence for felony murder. Hill filed a motion for new
trial on December 13, 2002, and amended it on April 18, 2003; the motion was
denied on July 17, 2003. Hill and his co-defendants appealed to this Court, and
their convictions were affirmed in 2004. See Culler v. State, 277 Ga. 717 (594
SE2d 631) (2004). Approximately eight years later, on April 11, 2012, Hill
filed an extraordinary motion for new trial, which he amended on April 23,
2013, and again on May 29, 2013. The judge who presided over the trial and
subsequent motions had retired, so a successor judge heard Hill’s extraordinary
motion for new trial. Following the hearing, that court issued an order on
October 22, 2013, granting Hill a new trial. The State filed a motion for
reconsideration on October 24, 2013, and the court entered an order on
November 6, 2013, withdrawing its prior order. After another evidentiary
hearing, on December 30, 2013, the successor court again granted Hill’s
extraordinary motion for new trial.
In the prior direct appeal, this Court noted that the evidence authorized the
jury to find that Hill, Culler, and White were at a home in Bibb County when
they decided to go to a nearby house, located on Amos Street, and retaliate for
the death of Culler's brother, who had been killed the previous day; along with
several others, the three men, who were armed with handguns, traveled to Amos
Street in two cars; they attempted to kick in the front door of the Amos Street
house, and when that failed, they began firing random shots into the house; one
of the three people inside the house, Waller, was shot in the head and killed; the
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intended target, Mills, was shot in the shoulder and injured; Hunter, who was
asleep in a back bedroom when the shooting occurred, was left unharmed once
the gunfire ended; an eyewitness testified that he watched the shooting and
heard shots being fired from three distinct guns; Culler later told a friend that he
had fired shots into the home, and thought he had killed Waller; ballistics
reports identified shell casings recovered from the scene as having been fired
from at least two different guns, possibly more; and DNA testing identified a red
baseball cap recovered from the front yard of the Amos Street house as having
been worn by Hill.
In his extraordinary motion for new trial, Hill alleged that he was entitled
to a new trial because of newly-discovered evidence involving a witness named
Shaneka Jackson (“Shaneka”). His claim was based on three arguments: (1)
Hill’s rights to due process under Brady v. Maryland, 373 U.S. 83 (83 SCt 1194,
10 LE2d 215) (1963) were violated because in 2001, Shaneka told Detective
Carl Fletcher, during his initial investigation, that Hill was at her house at the
time of the shooting, that the State failed to disclose this information to Hill
prior to trial, and that this alibi information was not included in the detective’s
police report or his transcribed interview with Shaneka; (2) under Timberlake
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v. State, 246 Ga. 488 (271 SE2d 792) (1980), if Shaneka’s testimony had been
admitted at trial, there is a strong likelihood that the verdicts would have been
different; and (3) the newly-discovered alibi evidence shows Hill’s actual
innocence, and this overcomes the circumstantial evidence upon which Hill was
convicted.
The successor court found, inter alia, that Shaneka’s affidavit testimony
was credible and reliable, that Fletcher’s investigatory practices were unreliable
and not credible, and that a “fully-informed” jury should decide the question of
Hill’s involvement.1 It found in favor of Hill on all three of the bases of his
claim of newly-discovered evidence, vacated his convictions, and granted him
a new trial.
The determination of this appeal must begin with an analysis of the
precepts of appellate review of the ruling. It is certainly true that this Court will
not disturb the first grant of a new trial on the general grounds in a criminal case
unless the trial court abused its discretion in granting it and the law and facts
1
The successor court rejected the State’s contention that a “Motion to Vacate and Void” filed
by Hill in 2004, was substantially an extraordinary motion for new trial, and therefore, that the
present motion was a second extraordinary motion for new trial, which was procedurally barred by
OCGA § 5-5-41 (b).
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require the verdict rendered. OCGA § 5-5-502; State v. Harris, 292 Ga. 92, 94
(734 SE2d 357) (2012). The trial court is to be given a significant amount of
deference in the exercise of its discretion in such a situation because it was an
observer of what transpired at trial; indeed, the trial judge has been referred to
as the “thirteenth juror.” State v. Harris, at 94. But, there is a significant
difference in consideration of a motion for new trial and an extraordinary
motion for new trial; extraordinary motions for new trial are “not favored,” and
“a stricter rule is applied to an extraordinary motion for a new trial based on the
ground of newly available evidence than to an ordinary motion on that ground.”
(Citation and punctuation omitted.) Crowe v. State, 265 Ga. 582, 590-591(15)
(458 SE2d 799) (1995). Furthermore, the discretion of a successor judge is
narrower in scope than that of the judge presiding at trial, and the successor
judge's factual rulings are not given the broad deference given to findings by the
presiding judge. State v. Harris supra at 95; State v. Clements, 289 Ga. 640 (1)
(715 SE2d 59) (2011). While this Court will still accord substantial deference
2
OCGA § 5-5-50 provides:
The first grant of a new trial shall not be disturbed by an appellate court unless the appellant
shows that the judge abused his discretion in granting it and that the law and facts require the
verdict notwithstanding the judgment of the presiding judge.
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to a trial court's decision on an extraordinary motion for new trial and review its
ultimate ruling for an abuse of discretion, such discretion is not unfettered; the
trial court must exercise its discretion in conformity with the governing legal
principles, and the facts that the court is to find and those which must be
evaluated by this Court are those relevant to determining whether the legal
requirements have been satisfied. Ford Motor Co. v. Conley, 294 Ga. 530, 538
(2) (757 SE2d 20) (2014), citing State v. Pickett, 288 Ga. 674, 679 (4) (d) (706
SE2d 561) (2011). Indeed, if the trial court significantly misapplies the law or
makes a clear error with regard to a material finding of fact, the trial court's
exercise of discretion can be upheld only if this Court can reach the conclusion
that had the trial court used the correct facts and legal analysis, it would have
had no discretion to reach a different judgment. State v. Pickett, supra at 679 (4)
(d). Otherwise, there is an abuse of discretion as a matter of law. That is
precisely the situation in this case. The successor court clearly erred in regard
to material factual findings which resulted in that court’s improper grant of
Hill’s extraordinary motion for new trial. Additionally, the successor court
employed, in part, an erroneous legal analysis in finding in favor of Hill.
The linchpin of the successor court’s ruling is Shaneka’s 2012 affidavit,
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to which the court gave full credit. However, there was no evidence, via
Shaneka’s affidavit or otherwise to support the successor court’s determination
that prior to trial, Shaneka told Detective Fletcher about an alibi for Hill. Her
2012 affidavit did not include an averment that she provided Fletcher with any
alibi information when he interviewed her.3 Moreover, the vague averments in
the affidavit did not provide any concrete evidence that Hill was not or could not
have been involved in the fatal shooting and assaults for which he was
convicted. Despite this lack of proof that Shaneka gave Fletcher exculpatory
information, the successor court leaped to the unwarranted conclusion that she
had provided such information. The court then used this erroneous finding of
fact as the foundation for its rulings in favor of Hill’s claims.
3
Shaneka’s 2012 affidavit stated in relevant part as to Hill’s alibi that on Sunday, November
18, 2001, she was living near the crime scene; that she was out socializing on Saturday evening,
November 17, 2001, and that in the early morning hours of November 18, several people returned
to her home to retrieve their vehicles; that Hill and White were in her home after midnight; that when
she returned home, she immediately went to bed but her friends (unnamed) were still in the house;
that although she was in the bedroom, she could hear what was said; that “at some point” a neighbor
came to the house and said that Culler’s brother had been shot to death; that she heard “people” in
her living room reacting emotionally to the news; that Hill, White, and “others” left together shortly
after learning of the death; that she “heard gunshots outside, somewhere in the neighborhood, after
the news about [Culler’s brother] was delivered but before the men departed”; shortly after the
crimes at issue, Fletcher had her brought to his office and after Fletcher and she “spoke off the record
for a while,” she gave a statement which was typed as she spoke; and that during Fletcher’s
questioning of her, he expressed dissatisfaction with what she was able to tell him and wanted her
to incriminate Hill, White and others, offering her inducements and making threats.
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In regard to Hill’s claim of a violation of Brady v. Maryland, Hill had to
show that: (1) the State, which would include any part of the prosecution team,
possessed evidence favorable to him; (2) he did not possess the favorable
evidence and could not obtain it himself with any reasonable diligence; (3) the
State suppressed such favorable evidence; and (4) a reasonable probability that
the outcome of the trial would have been different had the favorable evidence
been disclosed to the defense. State v. James, 292 Ga. 440, 441 (2) (738 SE2d
601) (2013). And, Hill did not meet such burden.
Again, Hill failed to show that the State either possessed or suppressed
any favorable evidence, because there is no evidence that Shaneka actually gave
Fletcher the alleged alibi information. Indeed, her 2001 statement to Fletcher,
which was provided to the defense prior to trial along with a witness list naming
Shaneka, was anything but exculpatory as to Hill. She named her then
boyfriend, two cousins, and an acquaintance, who allegedly were in her
apartment in the early morning hours prior to the shooting but did not mention
Hill. She also stated that she was in another room when she heard an individual
or individuals knock on the apartment door and enter the apartment; that she
heard loud talking and cursing after someone said that Culler’s brother had been
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killed, and in fact, she told “everybody to hold it down”; that she heard the
individuals who had arrived at the apartment leave; and that she heard gunshots
about five minutes after the unnamed individuals left her apartment. Thus, even
if Hill was one of the unnamed individuals who exited the apartment, and the
gunshots heard by Shaneka were indeed those resulting in the present crimes,
the expressed time line would not rule out Hill’s involvement. Thus, questions
of Hill’s diligence in ascertaining Shaneka’s knowledge about the night of the
shooting, or any potential impact on the outcome of trial need not be reached.
It was also error for the successor court to find that Hill satisfied the
criteria of Timberlake v. State for granting a new trial on the basis of newly
discovered evidence. He had to satisfy the court that (1) the evidence at issue
came to his knowledge since his trial; (2) it was not owing to the want of due
diligence that he did not acquire it sooner; (3) such evidence is so material that
it would probably produce a different verdict; (4) the evidence is not merely
cumulative; (5) the affidavit of the witness herself should be procured or its
absence accounted for; and (6) the effect of the evidence would be more than to
merely impeach the credibility of a witness. Id. at 491 (1). Hill cannot satisfy
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even the threshold requirements of Timberlake.
The statements in Shaneka’s 2012 affidavit upon which Hill relies were
not new evidence in that they certainly did not come to Hill’s knowledge since
his trial. Accepting arguendo, the accuracy of the statements in Shaneka’s
affidavit, Hill was present and aware of Shaneka being at her home on the night
and time of the shooting, and also aware of her knowledge that Hill was there
as well. Furthermore, as noted, a witness list naming Shaneka and her
2001statement to police were provided to Hill pre-trial; therefore, Hill had
ample opportunity to secure her as a witness. The failure to satisfy even one of
the Timberlake requirements is cause for the denial of a new trial on the basis
of alleged newly discovered evidence. Davis v. State, 283 Ga. 438, 440 (2) (660
SE2d 354) (2008).
Finally, the successor court erroneously found that Hill should be granted
a new trial based on a claim of actual innocence, premised upon the 1916 case
of Joiner v. State, 17 Ga. App. 726 (88 SE 215) (1916). Even assuming that
Joiner, rather than Timberlake, is properly applied in this situation, that case
provided that a new trial should be granted
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if the conviction of the accused rests upon circumstantial
evidence alone, and the newly discovered evidence is direct
and positive in character as to the innocence of the defendant,
and such testimony would, if the witness be credited, produce
a different result on a second trial.
The alleged newly-discovered evidence is far from “direct and positive” as to
Hill’s innocence, and even if fully credited, does not refute the evidence of
Hill’s guilt adduced at trial; consequently, the offered evidence is unlikely to
produce a different result upon retrial.
Simply, the successor court abused its discretion in granting Hill’s
extraordinary motion for new trial.
Judgment reversed. All the Justices concur.
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