Murder. Fulton Superior Court. Before Judge Shoob.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Assistant District Attorney, for appellant.
Alixe E. Steinmetz, for appellee.
BENHAM, Justice. All the Justices concur.
This is the second appearance of this case before this Court. A jury convicted Marcus Jackson on murder and related charges, after which the trial court granted defendant's motion for new trial. This Court reversed, noting that the order granting new trial was entered solely on the ground of the legal insufficiency of the evidence, and not pursuant to OCGA § 5-5-21 with the trial court acting as the " thirteenth juror."  State v. Jackson, 294 Ga. 9 (748 S.E.2d 902) (2013). Jackson filed a motion for reconsideration in which he raised, as one of three grounds for reconsideration, the argument that the trial court's order should be vacated (not reversed) and the case remanded to allow the trial court to review the case under the thirteenth juror standard. This Court denied the motion for reconsideration, and the [295 Ga. 826] remittitur was filed in the trial court November 12, 2013. Two days later, Jackson filed a " Motion for Ruling Pursuant to OCGA Sections 5-5-20 and 5-5-21," which was submitted to the predecessor trial judge, Fulton County Superior Court Judge Wendy L. Shoob. Apparently Judge Shoob was no longer the assigned judge in the case. Judge Gail S. Tusan, to whom the case appears to have been assigned at least by the time this Court's earlier judgment was remitted to the trial court, entered an order that the judgment of this Court be made the judgment of the trial court, and that order was filed on November 20, 2013. Nevertheless, Judge Shoob entered an order dated December 6, 2013, purporting to grant Jackson a new trial pursuant to OCGA § § 5-5-20 and 5-5-21. The State filed this appeal. We reverse, finding that jurisdiction was
lacking for the entry of the post-remittitur order purporting to grant a new trial.
The record reflects that Jackson's initial motion for new trial was amended to assert five grounds of legal error. On the day of the hearing, however, Jackson filed a second amended motion asserting as its sole ground the sufficiency of the evidence to support the verdict. At the hearing, Jackson confirmed his strategic choice to proceed solely on the claim of legal insufficiency of the evidence, with Jackson's trial counsel stating he had discussed the motion at length with Jackson and that he and his client were in agreement to go forward " only on [the] sufficiency argument raised in the second amended motion." Later in the hearing, counsel reiterated the express waiver and abandonment of all other grounds for rehearing. Upon reversing the order granting Jackson's motion for new trial, this Court entered an order remitting the case to the trial court and directing that the trial court judgment granting the motion for new trial be reversed.
Upon remittitur of an appellate court decision to the trial court, " [t]he decision and direction shall be respected and carried into full effect in good faith by the court below." OCGA § 5-6-10. That statutory requirement was honored by the trial court's November 20, 2013, order making the judgment of this Court the judgment of the trial court. By reversing the trial court's order granting new trial on the [295 Ga. 827] sole ground ultimately pursued by Jackson, this Court's previous opinion effectively held that the trial court should have denied the motion for new trial. All pending issues were thereby resolved, and no further disposition of the case by the trial court was authorized. Upon remittitur, the disposition of Jackson's motion for new trial was final, and this Court's order became the law of the case. See Shepherd v. Shepherd, 243 Ga. 253 (253 S.E.2d 696) (1979) (reversing the trial court's order that effectively reinstated its previous order which had been reversed by this Court in a previous appeal of the case; when the trial court's decision is reversed without direction, the judgment of the appellate court is final, and the trial court has no authority to allow a party to amend a motion, the grant of which was reversed by the appellate court's previous ruling). Afterwards, the lower court had no jurisdiction to entertain a newly filed motion for new trial seeking to assert grounds that Jackson had affirmatively waived and abandoned. " The only action which that court had authority or power to take was to make the judgment of this [C]ourt the judgment of the trial court and to enter an order [denying the motion for new trial]." Id. at 254. This is because the judgment of this Court in the earlier appeal " is conclusive of all matters in issue or that might legally have been put in issue." (Citation and punctuation omitted.) Akins v. State, 237 Ga. 826, 827 (229 S.E.2d 645) (1976).
It was too late, post-remittitur, for Jackson to secure a new trial on grounds that were not preserved in the motion that was the subject of the earlier appeal. Just as a criminal defendant may not attack his conviction piecemeal by filing successive appeals from the conviction (see Grant v. State, 159 Ga.App. 2, 3 (282 S.E.2d 668) (1981)), likewise, a defendant may not file successive motions for new trial on grounds not previously raised where, as here, the trial court's grant of his motion for new trial was reversed, thus making the conviction a final judgment. Jackson's " thirteenth juror" theory of relief was initially advanced in his motion for new trial, but relief on that claim would only have gained Jackson a new trial. It is apparent that Jackson made a strategic choice to waive all other grounds for new trial in favor of advancing only an assertion of legal sufficiency of the [295 Ga. 828] evidence because, if that gamble
was ultimately successful, his conviction would be reversed, and he would not be subject to retrial. The trial court erred in granting a successive ...