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State v. Green

Court of Appeals of Georgia

March 11, 2015

THE STATE
v.
GREEN (two cases)

Motion to suppress. Dougherty Superior Court. Before Judge Lockette.

Appeals dismissed.

Gregory W. Edwards, District Attorney, Smith N. Wilson, Assistant District Attorney, for appellant.

Jimmonique R. S. Rodgers, James C. Bonner, Jr., Robert R. McLendon IV, Randall P. Sharp, Kevin C. Armstrong, for appellees.

BOGGS, Judge. Barnes, P. J., and Branch, J., concur.

OPINION

Boggs, Judge.

The State appeals from the trial court's orders granting the motions by Carl Green and Quintavis Green (" the Greens" ) to suppress evidence obtained as the result of an illegal stop without articulable suspicion (" the orders on the motions to suppress" ). The State also appeals from the trial court's orders dismissing 14 counts of the indictment against the Greens on account of the State's failure to preserve exculpatory evidence (" the dismissal orders" ).[1] The Greens have moved

Page 805

to dismiss the State's appeals of the dismissal orders for lack of jurisdiction. Because the State failed to secure certificates of immediate review under the version of OCGA § 5-7-2 applicable to this indictment, we dismiss the appeals from those orders. And because our dismissals resolve the counts upon which the trial court [331 Ga.App. 108] granted the motions to suppress, we also dismiss the State's appeals of the orders on the motions to suppress as moot.

1. The trial court entered the dismissal orders based upon the State's failure to preserve exculpatory evidence, finding that the State destroyed evidence in bad faith and that no alternative means of recovering that evidence existed. As a result, it dismissed 14 counts of the indictment. The Greens have moved to dismiss the State's appeals from these orders on the ground that this court lacks jurisdiction under OCGA § 5-7-2, because the State failed to obtain a certificate of immediate review.

The Greens were arrested on September 11, 2011 and indicted as part of a 116-count indictment naming 32 defendants. Both Greens were jointly charged in seven counts with hijacking a motor vehicle, armed robbery, aggravated assault, and four counts of " Violation of Street Gang Terrorism and Prevention Act" (" gang activity" ). Quintavis Green was individually charged with one additional count of gang activity and possession of a firearm during the commission of a felony; Carl Green was individually charged with three additional counts of gang activity, possession of a firearm during the commission of a felony, and two counts of carrying a weapon without a license.

The Greens moved to suppress statements and other evidence based on violation of the reciprocal discovery rules and to dismiss the indictment against them on due process and confrontation clause grounds. A hearing was held at which the investigating officers and the records custodian for the police department testified that the recorded interviews with the Greens and the man who was arrested with them had been destroyed. After the hearing, the trial court entered orders finding that the interviews were exculpatory and favorable to the Greens, that this was known to the investigators, and that they failed to preserve the interviews in violation of department policy. It further concluded that the State acted in bad faith in failing to preserve the interviews, that the destroyed evidence was exculpatory, and that there was no reasonable alternative means to recover it. It therefore dismissed the indictment as it pertained to the Greens.[2] The State did not obtain certificates of immediate review, but filed direct appeals " from the trial court's September 13, 2013, orders granting the Defendant's motions to suppress and dismiss."

OCGA § 5-7-1 (a) (1) now provides that the State may appeal " [f]rom an order, decision, or judgment setting aside or dismissing [331 Ga.App. 109] any indictment, accusation, or a petition alleging that a child has committed a delinquent act, or any count thereof." [3] But at the time of the acts for which the Greens were indicted, OCGA § 5-7-2 provided in its entirety:

Other than from an order, decision, or judgment sustaining a motion to suppress evidence illegally seized, in any appeal under this chapter where the order, decision, or judgment is not final, it shall be necessary that the trial judge certify within ten days of entry ...

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