BARNES, P. J., MERCIER and BROWN, JJ.
Cook appeals from his convictions of armed robbery,
aggravated assault, and possession of a knife during the
commission of a crime and the denial of his motion for new
trial. He contends that (1) the verdict was decidedly and
strongly against the weight of the evidence and (2) the
unreasonable delay in preparation of the transcript was a
violation of his due process rights. For the reasons
explained below, we affirm in part, vacate in part, and
remand the case with direction.
On appeal from a criminal conviction, we construe the
evidence in the light most favorable to the verdict, and the
defendant no longer enjoys a presumption of innocence. We do
not weigh the evidence or resolve issues of witness
credibility, but merely determine whether the evidence was
sufficient for the jury to find the defendant guilty beyond a
Oduok v. State, 347 Ga.App. 178 (817 S.E.2d 145)
(2018). So construed, the evidence shows that Cook was living
with his mother, the victim, at the time of the incident.
Cook arrived at the home and entered his mother's bedroom
where he proceeded to go through her purse. The mother, who
was in a wheelchair, confronted Cook and asked him what he
wanted. Cook responded that he wanted money. When the mother
told Cook she had no money, he threw her onto the foot of the
bed. Cook dumped the contents of the purse on the bed and
floor and continued to demand money from his mother. When she
again responded she had none, he held a butterfly knife to
her neck. Eventually, Cook found $43 in cash, along with his
food stamp and unemployment cards, which the mother had been
keeping for him. Cook then fled. When police arrived at the
home, the purse contents were strewn on the bed and bedroom
floor. The mother was unharmed, but visibly upset and
uncontrollably crying. When police apprehended Cook later
that day, he did not have a knife. Cook agreed to give a
written statement and admitted robbing his mother for drug
money, but denied using a knife.
his motion for new trial, Cook asserted that the verdict was
"decidedly and strongly against the weight of the
evidence" and "contrary to the evidence . . . [and]
to the laws and principles of justice and equity." On
appeal, Cook again argues that the trial court should have
vacated his convictions on the "general grounds."
The judge presiding over the trial of a case may grant a new
trial "when the verdict of a jury is found contrary to
evidence and the principles of justice and equity. . .
." OCGA § 5-5-20. The presiding judge, in the
exercise of sound discretion, may grant a new trial in a case
in which "the verdict may be decidedly and strongly
against the weight of the evidence even though there may
appear to be some slight evidence in favor of the
finding." OCGA § 5-5-21. The grounds set forth in
these statutes are commonly known as the "general
grounds" for new trial, and this Court has stated that
OCGA § 5-5-21 authorizes the trial judge to sit as a
"thirteenth juror" and to exercise his or her
discretion to weigh the evidence on a motion for new trial
alleging these general grounds. Pursuant to this statute, a
trial judge is vested with the "strongest of
discretions" to review a case and to set the verdict
aside if the judge is not satisfied with it. . . . A trial
court, however, does not properly exercise its discretion
when it applies an improper legal standard of review, as
opposed to its own discretion as the thirteenth juror, to the
general grounds for new trial.
(Citation omitted.) State v. Holmes, 304 Ga. 524,
531-532 (3) (820 S.E.2d 26) (2018). In Choisnet v.
State, 292 Ga. 860 (742 S.E.2d 476) (2013), our Supreme
Court explained that "a trial court does not fulfill its
duty to exercise its discretion when it applies the standard
of review set out in Jackson v. Virginia to the
statutory grounds for new trial." Id. at 861.
the trial court found that "[t]he evidence admitted at
trial consisting of testimony from the victim . . . and [the
investigator] is sufficient under the standard set forth in
Jackson v. Virginia, 443 U.S. 307');">443 U.S. 307 [(99 SCt 2781, 61
L.Ed.2d 560)] (1979)." Given the wording of the trial
court's order and its finding with regard to the
sufficiency of the evidence, it is clear that the trial court
failed to apply the proper standard. Accordingly, the
judgment must be vacated and the case remanded to the trial
court for consideration of the motion for new trial under the
proper legal standard. See Choisnet, 292 Ga. at 861.
See also State v. Wilkerson, 348 Ga.App. 190, 198
(2) (820 S.E.2d 60) (2018) (vacating grant of motion for new
trial and remanding case to trial court to reconsider the
general grounds under the proper legal standard), cert.
granted (Aug. 5, 2019).
asserts that the delay in preparation of the trial transcript
violated his due process rights and that the trial court
erred in denying his motion for new trial on this ground. We
trial took place on October 20, 2014, and the trial court
sentenced him on October 21, 2014. Cook's trial counsel
filed a motion for new trial on October 24, 2014. On January
7, 2015, a consent continuance of Cook's motion for new
trial was filed because the trial transcript had not yet been
filed, although it had been requested. On February 6, 2015,
the official request for the trial transcript was
filed.The trial court held a hearing on February
20, 2015, at which the court reporter was present. A gap of
over two years followed with no transcript filed.
November 2, 2017, the trial court issued an order requiring
the court reporter to appear at every subsequent status
hearing to update the court on the status of the trial
transcript. Various emails in the record reflect that
Cook's appellate counsel consistently contacted the court
reporter, asking about the transcript. On more than one
occasion, the court reporter informed the trial court clerk
and appellate counsel that the transcript would be ready and
filed on a certain date, but failed to follow through on the
promise. On December 14, 2017, the trial court held another
status hearing, during which the court reporter informed the
court that the transcript would be finished by December 18,
2017. However, the court reporter again failed to file the
transcript. The trial court held another status hearing on
January 9, 2018, at which the court reporter appeared. On
February 13, 2018, the court reporter filed the trial
transcript. Cook filed an amended motion for new trial,
pointing out that the transcript was replete with errors and
omissions, and contending that his "convictions should
be overturned because the State failed to provide [him] with
a complete and correct copy of the trial transcript." On
May 16, 2018, the trial court held a hearing on Cook's
motion for new trial, during which Cook's appellate
counsel presented testimony from the court reporter as to the
transcript issues. On the same day, the trial court ordered
the court reporter to file a correct and complete transcript
by May 25, 2018. The court reporter filed a corrected
transcript on May 27, 2018. The trial court held a second
hearing on September 5, 2018, to review the newly filed
transcript and hear further argument on Cook's motion for
new trial. During the hearing, both Cook and the State agreed
that the second transcript filed was correct and complete.
The trial court denied Cook's motion for new trial in an
order filed on the day of the hearing.
defendant may be denied due process of law where there is an
inordinate delay in the appellate process, including an
excessive delay in the furnishing of a trial transcript
necessary for completion of an appellate record."
Graham v. State, 171 Ga.App. 242, 250 (7) (319
S.E.2d 484) (1984).
The similarity of a defendant's interests in a speedy
trial and a speedy appeal are such that the balancing test
adopted for speedy trial violations in Barker v.
Wingo, 407 U.S. 514 (92 SCt 2182, 33 L.Ed.2d 101)
(1972), should be applied to situations in which a defendant
claims that a delay in the appellate process is violative of
due process of law. The four factors enunciated in Barker
v. Wingo are the length of ...