Notice of appeal. Fulton Superior Court. Before Judge Russell.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Assistant District Attorney, for appellant.
Lawrence M. Korn; Kristin A. Howell; King, King & Jones, David H. Jones, for appellees.
Ellington, Presiding Judge.
The Superior Court of Fulton County entered directed verdicts of acquittal in favor of Javaris Brown, Meyetta King, and Kevin Rouse on charges of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (A); possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1); and other violations of the Georgia Controlled Substances Act. In Case No. A15A0457, the State appeals, contending, inter alia, that the judgments must be vacated as having been entered when jurisdiction lay in this Court and not in the trial court. In addition, in Case No. A15A0456, the State appeals from two interlocutory rulings, contending that the trial court abused its discretion in granting the defendants' motions to exclude certain evidence as a sanction for discovery violations and in granting the defendants' motions to exclude evidence of other crimes. For the reasons explained below, we vacate the judgments of acquittal, reverse the exclusion of evidence as a sanction for discovery violations, vacate the exclusion of evidence of other crimes, and remand.
Case No. A15A0457
1. The trial court directed verdicts of acquittal on all counts. As a threshold matter, therefore, we must determine whether the State has any right to appeal. Ordinarily, the State
may not appeal a trial court's grant to a criminal defendant of a directed verdict of acquittal based on an insufficiency of the evidence to support a conviction, in that a new trial would be barred by the double jeopardy clause of the Fifth Amendment. The government cannot appeal such a directed verdict of acquittal, even if it is erroneously granted.
(Citations omitted.) State v. Williams, 246 Ga. 788-789 (1) (272 S.E.2d 725) (1980). In this regard, the State contends that, when the trial court called the case for trial, it lacked the authority to do so. Specifically, the State contends that it was authorized pursuant to [333 Ga.App. 644] OCGA § 5-7-1 (a) (5) to appeal from certain evidentiary rulings entered by the trial court a few days before the scheduled trial, that it filed a notice of appeal that was sufficient to divest the trial court of jurisdiction of the case and invest this Court with jurisdiction (Case No. A15A0456), and that the trial court will be reinvested with jurisdiction only after this Court disposes of the pending appeal, when we issue a remittitur and the same is filed in the trial court. Because the trial court lacked jurisdiction when it called the instant case for trial, the State contends, the judgments of acquittal must be vacated.
The record shows the following proceedings. The defendants were arrested and indicted in April 2014. On July 3, 2014, the State filed pursuant to OCGA § 24-4-404 (b) notice of intent to introduce evidence of other acts of Brown and Rouse. On August 4, 2014, Brown filed a motion to suppress evidence seized pursuant to a search warrant executed on April 23, 2014. On August 18,
2014, Rouse filed a motion to suppress evidence seized on April 23, 2014, when he was detained outside the searched premises.
The trial court conducted a hearing on the evidentiary issues on August 7, September 9, and September 10, 2014. On September 11, 2014, the trial judge signed an order excluding certain evidence as a sanction for discovery violations and excluding the other-acts evidence, and the clerk of court stamped the order " filed" on September 12, 2014. The court placed the case on a trial calendar for September 17, 2014.
On September 12, 2014, the State filed a notice of appeal in the trial court pursuant to OCGA § 5-7-1 (a) (5). That Code section provides that in criminal cases the State may appeal " [f]rom an order, decision, or judgment excluding any ... evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first[.]" To take such an appeal, the State must file " the notice of appeal ... within two days of such order, decision, or judgment[,]" and the prosecuting attorney must " certif[y] to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding[.]" Id. On September 12, 2014, the State also filed a separate " Certificate of Purpose" in which the prosecuting attorney stated, " I hereby certify that the State's appeal of this Court's order excluding evidence as a sanction for discovery [333 Ga.App. 645] violations and excluding OCGA § 24-4-404 (b) evidence is not taken for purpose of delay, and the evidence is a substantial proof of a material fact in the proceedings."
The trial court called the case for trial on September 17, 2014. The State notified the court that it had filed a notice of appeal from the September 12, 2014 rulings and argued that its notice of appeal had divested the trial court of jurisdiction to try the case. The defendants disputed this, arguing that the State failed to comply with the procedural requirements of OCGA § 5-7-1 (a) (5) (B). Specifically, they argued that the statute requires the State to serve the trial judge directly with the required certification, that is, the State's filing of its Certificate of Purpose in the office of the clerk of the trial court was insufficient to certify to the trial court that such appeal was not taken for purpose of delay and that the excluded evidence was substantial proof of a material fact. They also argued that the State's appeal was in fact for purpose of delay. They argued that, given the abuse of discretion standard of review that would be applied by this Court, the State could not prevail on appeal. The prosecuting attorney reiterated that the appeal was not taken for purpose of delay and stated that it was necessary to appeal the court's evidentiary rulings because, without the excluded evidence, the State could not carry its burden of proof at trial. The trial court found that, although " [t]he State filed a document purporting to be ... [the] certification" required by OCGA § 5-7-1 (a) (5), the State did not provide it " to the trial court" as required. The trial court also found that the State's purpose in appealing was delay. The trial court ruled that the State's appeal was invalid and that the court would proceed with the trial.
The defendants all announced ready for trial. The State declined to participate, on the basis that the pending appeal divested the trial court of jurisdiction. The trial court then impaneled a jury. The State having failed to adduce any evidence, the defendants each moved for a directed verdict, and the trial court entered a directed verdict of acquittal as to each defendant.
If, contrary to the trial court's ruling, the State's September 12, 2014 notice of appeal was effective under OCGA § 5-7-1 (a) (5), then that notice of appeal deprived the trial court of jurisdiction to try the defendants until the State's appeal was resolved and the trial court received the remittitur from this Court. Chambers v. State, 262 Ga. 200, 201-202 (1), (2), (3) (415 S.E.2d 643) (1992) (holding that the State's appeal of an order suppressing evidence deprived the trial court of jurisdiction to try the accused and any proceeding so conducted in the trial court
was coram non judice and vacating the resulting judgment and that the return of the remittitur reinvests the [333 Ga.App. 646] trial court with jurisdiction). Although a notice of appeal must be filed in the trial court, the appellate court " alone has the authority to determine whether such filing is sufficient to invoke its jurisdiction." (Citation and punctuation omitted.) Hughes v. Sikes, 273 Ga. 804, 805 (1) (546 S.E.2d 518) (2001). Thus, we owe no deference to the trial court's analysis of whether the State's notice of appeal from the court's evidentiary rulings was effective.
In this case, it is undisputed that the State filed its notice of appeal from the trial court's evidentiary ruling within two days after the ruling was entered, that is, the date a written judgment was received and stamped " filed" by the clerk of the trial court. See OCGA § 5-6-31 (" The filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of [the Appellate Practice Act]." ); In the Interest of K. D., 272 Ga.App. 803, 805 (613 S.E.2d 239) (2005); Brown v. Webb, 224 Ga.App. 856, 857 (482 S.E.2d 382) (1997). Further, it is undisputed that the State filed with the clerk of the trial court a certification executed by the prosecuting attorney, who is an officer of the court, that the appeal was not taken for purpose of delay and that the evidence excluded in the appealed rulings was material. We conclude that this was sufficient to invoke the jurisdiction of this Court. We find no basis for concluding that the prosecuting attorney's certification of purpose and necessity " to the trial court" can only be satisfied by personally serving the judge presiding over a case. When the General Assembly has intended that certain communications be made personally to a judge -- as compared to matters that are to be submitted to a trial court as a governmental entity and made part of the official court records by filing in the office of the clerk of court -- it has so provided. [333 Ga.App. 647] Moreover, it is undisputed that, before the trial judge moved forward with impaneling a jury in this case, the prosecuting attorney personally informed the judge of the pending appeal, on the record and in open court. There is no issue of any lack of actual notice. Finally, even if this Court were inclined to question the ...