Murder. Bibb Superior Court. Before Judge Brown.
K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Shelley T. Milton, Jason M. Wilbanks, Assistant District Attorneys, for appellant.
Stuart M. Mones, Mark A. Yurachek, for appellee.
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 that 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 S.E.2d 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 house 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 [295 Ga. 717] 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 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 house, 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 S.Ct. 1194, 10 L.Ed.2d 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 v. State, 246 Ga. 488 (271 S.E.2d 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. 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.
[295 Ga. 718] 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 require the verdict rendered. OCGA § 5-5-50; State v. Harris, 292 Ga. 92, 94 (734 S.E.2d 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, supra 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 S.E.2d 799) (1995). Furthermore, the discretion of a successor judge is narrower in scope than that of the ...