Miller v. State

Mikell, Presiding Judge,

concurring specially.

I write separately to emphasize that the majority’s outline on page 504 of the method of appellate review of motions to suppress applies only when, as here, the evidence was stipulated. Our review is never de novo when the decision below depended on live, testimonial evidence because such evidence, in view of Georgia precedents about the factfinder’s role, is technically never “uncontroverted.” In Georgia a trier of fact, judge or jury, may believe or disbelieve all or *507any part of the testimony of any witness.2 To require as a matter of law that a jury or a judge must believe a witness’s testimony would pervert the truth-seeking mission of the trier of fact.

Decided August 29, 2012. Wystan B. Getz, for appellant. RosannaM. Szabo, Solicitor-General, KarenM. Seeley, Assistant Solicitor-General, for appellee.

The majority cites our otherwise very scholarly opinion State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005). Tbusley relied on dictum in the much criticized decision Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (trial judge’s decision based on two live witnesses affirmed). Vansant is criticized for its dictum, not for its quite reasonable holding. See, e.g., Miller v. State, 288 Ga. 286 (702 SE2d 888) (2010) (reversing Court of Appeals, which had used a de novo analysis). Accord Johnson v. State, 313 Ga. App. 137 (720 SE2d 654) (2011) (Mikell, J., concurring specially); Robinson v. State, 295 Ga. App. 136, 139-141 (670 SE2d 837) (2008) (Mikell, J., concurring specially); see also Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994). But see Jones v. State, 314 Ga. App. 247, 248 (723 SE2d 697) (2012); Wilson v. State, 308 Ga. App. 383 (708 SE2d 14) (2011).