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State v. Cash

Supreme Court of Georgia

October 30, 2017

CASH et al.


         This is an appeal by the State from an order of the superior court sustaining a motion by mother and daughter murder defendants Elgerie Mary Cash and Jennifer Michelle Weathington denominated "Double Jeopardy Plea in Bar, " which challenged the sufficiency of the evidence of their guilt at trial.[1] For the reasons which follow, we reverse and remand with direction.

         Procedural History

         Cash and her daughter Weathington were tried jointly before a jury in the Superior Court of Paulding County in October 2013 and found guilty of malice murder, felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Lennis Jones. Each woman was sentenced to life in prison for malice murder and a consecutive term of five years in prison for the firearm possession. Claiming that Jones accidentally shot himself, Cash and Weathington each filed a motion for new trial, which motions were subsequently amended. Following a joint hearing on the motions, as amended, in May 2014 the superior court entered separate orders granting each defendant a new trial, and then approximately a week later issued a joint amended order granting new trials to the defendants and vacating their convictions and sentences. The superior court did so after finding that the defendants received ineffective assistance of counsel at trial and based upon the general grounds, i.e., that the verdicts were contrary to the principles of justice and equity and decidedly and strongly against the weight of the evidence. See OCGA §§ 5-5-20, [2] 5-5-21.[3] The State appealed the grants of new trials to the defendants, and this Court affirmed, determining that the superior court "who observed the trial and who had the duty to examine the conflicts in the evidence and the credibility of the witnesses in ruling on the general grounds, did not abuse its broad discretion in granting [defendants] new trials on the general grounds." State v. Cash, 298 Ga. 90, 97 (2) (c) (779 S.E.2d 603) (2015) ("Cash I").[4] Upon return of the remittiturs, Weathington filed her "Double Jeopardy Plea in Bar, " claiming that the evidence at trial was insufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), and consequently, that the State could not again put her in jeopardy for the same offenses; Cash adopted her daughter's motion as her own. The superior court sustained the motion, finding that the defendants had not waived their rights to challenge the sufficiency of the evidence of their guilt of the crimes charged under Jackson v. Virginia, and that the evidence was insufficient under such standard; it expressly directed that a judgment of acquittal be entered as to both defendants on all counts of the charging indictment.[5]

         Jurisdiction of the Appeal

         As this Court reaffirmed in Cash I, "[a]ppeals by the State in criminal cases are construed strictly against the State and 'the State may not appeal any issue in a criminal case, whether by direct or discretionary appeal, unless that issue is listed in OCGA § 5-7-1.'" [6] Id. at 91 (1) (a) (citation omitted). Applicable OCGA § 5-7-1 (a) (3)[7] provides that the State may appeal to this Court from "an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy." (Emphasis supplied.) Weathington has moved to dismiss the State's appeal, arguing that in Cash I this Court already ruled that jeopardy attached at her first trial. But, the argument is unavailing.

         It is true that in Cash I this Court held that the State was not allowed to appeal the denial of its motion to recuse the trial judge under OCGA § 5-7-1 (a) (9), which authorizes the State to appeal an order denying a motion by the State to recuse a judge only when the motion is made and ruled upon prior to the defendant being put in jeopardy; because the State did not file its motion to recuse until after the defendants were convicted and shortly before the hearing on their motions for new trial, jeopardy had attached. Cash I at 91- 92 (1) (a). Compare State v. Caffee, 291 Ga. 31, 33-35 (3) (728 S.E.2d 171) (2012) (holding that OCGA § 5-7-1 (a) (3) gives this Court authority to consider State's appeal of order sustaining plea in bar entered after trial court granted motion for new trial due to improper admission of evidence). But, this does not answer the question of whether the defendants have been put in jeopardy in their retrial for the purpose of OCGA § 5-7-1 (a) (3).

         Before 1973 there was no statutory provision in Georgia for the State to appeal rulings in criminal cases; however, in 1973 the General Assembly enacted a law, [8] then codified in part as OCGA § 5-7-1, substantially similar to the pre-1971 version of 18 USC § 3731, a part of the federal Criminal Appeals Act. See State v. Morrell, 281 Ga. 152, 153, n.6 (635 S.E.2d 716) (2006). The new statute provided the State with limited avenues of appeal in criminal cases. State v. Martin, 278 Ga. 418, 419 (603 S.E.2d 249) (2004). The United States Supreme Court interpreted the pre-1971 version of 18 USC § 3731 in United States v. Jorn, 400 U.S. 470 (91 S.Ct. 547, 27 L.Ed.2d 543) (1971). In Jorn, the government sought to appeal an order of the District Court which dismissed, on the ground of former jeopardy, an information charging the defendant-appellee Jorn with crimes involving fraudulent income tax returns. After the impaneling of the jury for the initial trial, the prosecutor called to the stand a taxpayer whom Jorn allegedly had aided in tax preparation; however, the trial judge refused to permit the witness and other similar witnesses to testify because the judge did not believe the witnesses had been adequately advised of their rights. Consequently, the judge discharged the jury and ended the trial. The case was then set for retrial before another jury, but Jorn filed a pretrial motion to dismiss the charges against him and the trial judge did so on the basis of former jeopardy. The government filed a direct appeal from the dismissal, and the threshold question was whether the government had such a right of appeal from the adverse ruling. The issue was governed by the "motion-in-bar" provisions of applicable 18 USC § 3731, which provided, in language similar to that of OCGA § 5-7-1 (a) (3), that the government had a direct right of appeal from "the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy."[9] The question then became whether Jorn had been put in jeopardy for the purpose of the government's right to appeal by virtue of the impaneling of the jury in the first proceeding before the declaration of a mistrial. United States v. Jorn, 400 U.S. at 475. The Supreme Court concluded that "the sustaining of a motion in bar based on a plea of former jeopardy would be appealable as long as the motion in bar was sustained prior to the impaneling of the jury in the subsequent proceeding." Id. at 477.

         There is no dispute that the "Double Jeopardy Plea in Bar" in the present case was sustained prior to any impaneling of a jury for a retrial; thus, OCGA § 5-7-1 (a) (3) allows the State's appeal.

         Sufficiency of the Evidence

         As a threshold matter, the State contends that the superior court erred in sustaining defendants' "Double Jeopardy Plea in Bar" and then dismissing the charges against them on the ground of insufficiency of the evidence because defendants had abandoned the sufficiency issue in Cash I and because the superior court was without jurisdiction to entertain the motion in the first place. Indeed, defendants filed cross-appeals to the State's original appeal in Cash I, challenging the denial of their motions for new trial on the basis of insufficiency of the evidence; however, they were permitted to withdraw the cross-appeals after they moved to do so on the basis that the superior court had not entered a written order on the sufficiency ground but had merely stated in its oral ruling from the bench at the motion-for-new-trial hearing that the evidence was legally sufficient to support the defendants' convictions under Jackson v. Virginia.[10]In general, an oral ruling is neither final nor appealable until and unless it is reduced to writing. Hill v. State, 281 Ga. 795, 799 (3) (642 S.E.2d 64) (2007). Thus, the oral ruling on the sufficiency of the evidence was not the appropriate focus of a cross-appeal, and defendants did not abandon the issue by virtue of their withdrawals of their cross-appeals in Cash I. Nor was there any ruling in Cash I which precluded the filing and consideration of defendants' "Double Jeopardy Plea in Bar." Consequently, this Court will review the legal sufficiency of the evidence at defendants' trial. See State v. Caffee, supra at 34-35 (3).

         The standard of Jackson v. Virginia for assessing the legal sufficiency of the evidence is different than the discretion given a trial court in an evidentiary challenge based upon the general grounds. Manuel v. State, 289 Ga. 383, 386-387 (2) (711 S.E.2d 676) (2011). Indeed,

[e]vidence may be less than overwhelming, but still sufficient to sustain a conviction. When we consider the legal sufficiency of the evidence, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact. Instead, we must view the evidence in the light most favorable to the verdict, and we inquire only whether any rational trier of fact might find beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted.

Walker v. State, 296 Ga. 161, 163 (1) (766 S.E.2d 28) (2014) (internal citations and quotation marks omitted).

         The evidence construed in favor of the verdicts showed the following. At about 2:30 p.m. on May 30, 2011, Cash telephoned 911 to report a shooting at her home. A police officer was in the area and arrived at the scene within one to two minutes of the 911 call. Cash was standing on her front porch, crying and screaming for help; she said, "My daughter's boyfriend just shot himself." Cash directed the police officer to an upstairs bedroom, where he found Weathington cradling Jones's head, which had a towel wrapped around it. Jones was lying on the floor with his "legs somewhat propped" as if he had "pulled [his] feet up to [him]" with his "knees in the air, slightly to his left side with his left hand and arm laying" alongside. There was a large amount of blood on the floor. Weathington was hysterical, crying for help, and telling Jones to "hang on." Jones had a single gunshot wound to the head but was still breathing. A handgun was lying near Jones's feet and underneath a bench in the room. There was a can of beer and a bottle of liquor on the dresser; both appeared to be cold and full of liquid. Cash was standing next to the bed near the bedpost and between it and the wall. She appeared to be upset and "almost angry."

         Jones was taken to the hospital and died later that day. Before Jones was removed from the home, the officer asked Cash what happened, and she responded that "she was standing in-between the bed and the wall where the bullet hole was, " and that she "wanted to show [Jones] the gun." Cash stated, "I came back here. I grabbed it. I charged it. Nothing came out. He grabbed it, and he said it's not loaded. I told him it was loaded. And he stuck the gun to his head and pulled the trigger, and he shot himself." She then said only one shot had been fired. She also indicated that only she, Weathington, and Jones were in the room at the time of the shooting. Weathington did not describe what happened in any detail or differently from what Cash related, but simply agreed completely with her mother's version of events.

         The police officer thought the crime scene "unusual" in relation to the defendants' story in that he saw a bullet hole through the wall but no physical evidence of injury around the bullet hole; in his experience when someone shot himself in the head there were usually large amounts of blood, brain matter, bones, fragments, or skin on or about the bullet hole, but such markers were not present there. Instead, blood was coming out of Jones's nose and a significant amount of blood and brain matter was on the floor underneath his head. Also unusual was the fact that when the officer entered the bedroom and knelt down and observed Weathington she was covered with a consistent and large amount of high velocity blood spatter. Cash had a large amount of blood on her hands. After Jones was transported from the scene, the police officer noticed that both Cash and Weathington had "cleaned themselves up, " washing off all traces of Jones's blood. Weathington was seated on a couch in the living room and made a phone call to someone, telling that person that Jones had shot himself; the conversation turned into an argument with Weathington yelling at the person.

         Other police officers arrived at the scene and Cash then spoke with one of those detectives; she related a somewhat different version of events, including notably that she accidentally fired a shot into the wall before Jones asked for the weapon. Cash told another officer that she was Weathington's mother; that Jones was Weathington's boyfriend; that Jones had just finished mowing Cash's lawn; that he came inside the house and consumed approximately three alcoholic beverages; and that Jones then asked to see her new gun. She stated that she then took the handgun out of the night stand next to the bed; that she dropped the magazine onto the bed and pulled back the slide; that a bullet did not eject; that she pointed the handgun towards the wall, pulled the trigger, and the firearm discharged; and that she threw the handgun on the bed. She claimed that Jones then picked up the handgun and said, "there's nothing wrong with this gun"; that he slammed the magazine into the handgun and racked the slide back three times, discharging three ...

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