Extraordinary motion for new trial. White Superior Court. Before Judge Miller.
W. Jeffrey Langley, District Attorney, Jeremy D. Clough, Assistant District Attorney, for appellant.
McDonald & Cody, Douglas W. McDonald, Sr., Phillip G. Cody, Jr., for appellee.
MELTON, Justice. All the Justices concur.
Following a November 17-21, 2008 jury trial, Samuel Mitchell Abernathy was convicted of malice murder in connection with the [295 Ga. 817] January 2008 stabbing death of Darrin Ramey and sentenced to life in prison. On December 19, 2008, Abernathy filed a timely motion for new trial, which he later supplemented by filing an extraordinary motion for new trial on April 1, 2010, alleging the discovery of new evidence. The trial court granted Abernathy's motion for new trial on grounds of ineffective assistance of counsel, denied the other grounds in his motion seeking a new trial, and declined to reach the issues raised in Abernathy's extraordinary motion for new trial. In State v. Abernathy, 289 Ga. 603 (715 S.E.2d 48) (2011), this Court reversed the trial court's ruling to grant Abernathy a new trial, affirmed the trial court's decision to deny Abernathy's other grounds for a new trial, and remanded the case to the trial court for consideration of Abernathy's extraordinary motion for new trial.
In his extraordinary motion, Abernathy contended that new evidence came to light during the initial motion for new trial. Specifically, a man named John Geren, who had originally been arrested for the murder as a potential accomplice of Abernathy, but who was later released without being tried, had allegedly made statements to his attorney that were inconsistent with both his trial testimony and his pretrial interview with the District Attorney's office. In this regard, when Geren was interviewed under oath by law enforcement and prosecutors on March 12, 2008, and when he later testified at trial, Geren stated that the victim, Ramey, did not say anything to Abernathy before being stabbed. However, during the hearings on Abernathy's motions for new trial, Geren waived his attorney-client privilege, which allowed Abernathy's counsel to access Geren's first attorney's notes from an interview with Geren that the attorney had conducted on January 10, 2008. In those notes, the attorney wrote that Geren had told him that " Ramey said as they were reaching the parking lot [where Ramey was stabbed], I'm going to kill both of you faggots." Abernathy alleged that this inconsistency was significant due to the fact that he had argued self-defense at his trial. Following a June 26, 2013 hearing, the trial court granted Abernathy's extraordinary motion on October 1, 2013. In Case No. S14A0855, the State appeals from this ruling, and, in his cross-appeal, Abernathy contends that the trial court erred in rejecting the other grounds that he raised in his extraordinary motion for new trial. For the reasons that follow, we reverse in Case No. S14A0855, and we affirm in Case No. S14X0856.
[295 Ga. 818] Case No. S14A0855
1. The State correctly contends that the trial court erred by granting Abernathy's extraordinary motion for new trial based on newly-discovered evidence.
[A] new trial may be granted based on newly-discovered evidence only where the defendant shows each of the following: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a
different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. (Citations and punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 S.E.2d 792) (1980) . ... 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 ...