Street Cred 11/5/2018. Appellate Practice

Transcription

1 Appellate Practice Robert W. Smith, Jr. Prosecuting Attorneys Council of Georgia Street Cred 145 appeals to the Georgia Court of Appeals 115 appeals to the Georgia Supreme Court Successfully argued before the 11 th Circuit Court of Appeals Over 20 oral arguments before the Georgia Appellate Courts What you re really thinking and wanting 1

2 We the jury, find the Defendant Guilty of Count 1 This is how you feel You re not done yet, you re still racing 2

3 Motion for New Trial O.C.G.A The superior, state, and juvenile courts and the City Court of Atlanta shall have power to correct errors and grant new trials in cases or collateral issues in any of the respective courts in such manner and under such rules as they may establish according to law and the usages and customs of courts. Motion for New Trial (cont d) Grounds The verdict is contrary to law. The verdict is contrary to the evidence. The verdict is strongly against the weight of the evidence. Illegal admission / exclusion of evidence Error in jury instructions Other reasons (Ineffective Assistance of Counsel) How else could you have gotten a conviction? 3

4 Motion for New Trial (cont d) O.C.G.A : Must be filed within 30 days of conviction Can be amended any time on or before the ruling thereon. Usually skeletal is filed and then the defense attorney will amend multiple times While not required, having transcripts from all motion hearings and the trial before proceeding will be helpful Motion for New Trial (cont d) Court can summarily deny motion without a hearing if a hearing on the motion is not requested. Wilkins v. State, 220 Ga. App. 516 (1996) (2 day post trial ruling) Actions of the defendant / defense counsel can also lead to a waiver of the hearing. Mimms v. State, 254 Ga. App. 483 (2002) (excessive leaves) Motion for New Trial (cont d) The "out-of-time appeal" "is granted where the deficiency involves not the trial but the denial of the right of appeal. [Cits.]" Lay v. State, 242 Ga. 225, n. 1 (1978) 4

5 Motion for New Trial (cont d) The purpose of an out-of-time appeal in a criminal case is to address the constitutional concerns that arise when a defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. Stephens v. State, 291 Ga. 837, (1) (2012) (citations omitted) Motion for New Trial (cont d) What this means: Hasty v. State, 213 Ga. App. 731 (1994) as long as the Defendant doesn t actively waive his appeal, he will get an appeal, even if the request is filed very late. (2 yrs+) Davis v. State, 330 Ga. App. 711 (2015) MNT late. Court of Appeals analysis of jurisdiction Motion for New Trial (cont d) Standard for trial court to use: Choisnet v. State, 292 Ga. 860 (2013) These statutes afford the trial court broad discretion to sit as a thirteenth juror and weigh the evidence on a motion for new trial alleging these general grounds. Walker v. State, 292 Ga. 262 (2) (2013). A trial court reviewing a motion for new trial based on these grounds has a duty to exercise its discretion and weigh the evidence and consider the credibility of the witnesses. 5

6 Motion for New Trial Translation: If you use a fill in the blank order or a one sentence order, you will have to do the Motion hearing again. Trial Court must make findings about credibility of witnesses who testified at trial or a lack of a reason to over rule the jury s determination. Trial Court must also speak to the weight of the evidence and whether there was enough evidence to convince the trial court of the defendant s guilt Motion for New Trial However: If the record and language of the order don t refute the notion that the judge used his/her discretion, it s ok. Conley v. State, 329 Ga. App. 96, 100 (2) (2014) Leggett v. State, 331 Ga. App. 343, (2015) Jones v. State, 2016 Ga. App. LEXIS 559, A16A1279, decided October 13, 2016 Direct Appeal JURISDICTION OF THE COURT OF APPEALS The Court of Appeals of Georgia reviews all appeals from the trial courts in which jurisdiction is not exclusively reserved to the Supreme Court. 6

7 Direct Appeal JURISDICTION OF THE COURT OF APPEALS The Constitution of the State of Georgia, Article VI, Section VI, Para. I et seq., provides that the Supreme Court has exclusive jurisdiction over election contests, the construction of treaties or the Constitutions of the State of Georgia and the United States and challenges to the constitutionality of a law, ordinance or constitutional provision. The Supreme Court has general appellate jurisdiction over cases involving title to land; equity; wills; habeas corpus for murder only; extraordinary remedies; divorce and alimony; all cases certified to it by the Court of Appeals and all cases in which a sentence of death was or could be imposed. Direct Appeal (cont d) State s right to appeal: (For effective date, see note.) Orders, decisions, or judgments appealable; defendant's right to cross appeal (1) From an order, decision, or judgment setting aside or dismissing any indictment, accusation, or a petition alleging that a child has committed a delinquent act, or any count thereof; (2) From an order, decision, or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds; Direct Appeal (cont d) (3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy; (4) From an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first; 7

8 Direct Appeal (cont d) (5) From an order, decision, or judgment excluding any other 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, if: (A) Notwithstanding the provisions of Code Section , the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and (B) The prosecuting attorney certifies 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; Direct Appeal (cont d) (6) From an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state; Direct Appeal (cont d) (7) From an order, decision, or judgment of a superior court transferring a case to the juvenile court pursuant to Code Section or subsection (b) of Code Section ; (8) From an order, decision, or judgment of a court granting a motion for new trial or an extraordinary motion for new trial; 8

9 Direct Appeal (cont d) (9) From an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy; or (10) From an order, decision, or judgment issued pursuant to subsection (c) of Code Section Dismissing an Appeal O.C.G.A (c) 30 days to file transcript or get an extension O.C.G.A (c) Appeal may be dismissed if the moving party presets evidence to show that the delay (time after the 30 days or extension) is unreasonable and the delay was both inexcusable and caused by the appealing party Court of Appeals 9

10 Court of Appeals Georgia Court of Appeals 5 panels of 3 Membership on panels rotates 7 member panels 15 member / whole court opinions 10

11 Organization 40 days after the docketing date or 20 days after the filing of the appellant's brief whichever is later. 11

12 Motion for Reconsideration 10 days from date of judgment Must be physically received in office by that date only granted when the Court overlooked a material fact in the record; a statute or a decision which is controlling as authority and which would require a different judgment from that rendered; or the Court erroneously construed or misapplied a provision of law or a controlling authority. Georgia Supreme Court Georgia Supreme Court 12

13 A review on certiorari is not a right A petition for the writ will be granted only in cases of great concern, gravity, or importance to the public. 13

14 Georgia Supreme Court All 9 Justices consider the case Usually, the Attorney General files a brief as well Oral Arguments are required for cert grants. Discretionary if requested on other cases. SCOTUS 14

15 What kind of office are you? Making a good appellate record What can you do to make the person writing your appeal not want to hunt you down, cover you in honey, and leave you tied up next to a fire ant mount? Making a good record (cont d) 15

16 Making a good appellate record (cont d) Use your words Describe what you are doing, pointing, showing, etc. A: About this far (demonstrating). A: Yes (pointing) (at this time a video was played) Did something happen in the courtroom that needs to be noted? 16

17 17

18 18

19 Making a good appellate record (cont d) Making a good appellate record (cont d) Speak slowly Court reporters are required to be able to take down 225 words per minute with a 95% accuracy rate Speak clearly Give complete case citations Spell out difficult names Don t be afraid to take a breath or pause (inaudible) = frustrated court reporter and appellate attorney 19

20 Making a good appellate record (cont d) Smith v. State, 288 Ga. 348, 356 (2010) It is not the job of a prosecutor in this State to pursue stunts and antics during their closing arguments that are designed merely to appeal to the prejudices of jurors, but to see that justice is done and nothing more. Making a good appellate record (cont d) Smith v. State, 288 Ga. 348, 356 (2010) That duty should not be forgotten in an excess of zeal or the eager quest for victory in any given case. The people of the state desire merely to ascertain beyond a reasonable doubt that the accused is guilty of the crime charged, and do not countenance any unfairness upon the part of their representatives in court. Making a good appellate record (cont d) Blackmon v. State, 336 Ga. App. 387 (2016) Rickman s concurrence: Ethical standards and rules that apply No sanctions for failing to comply 20

21 Making a good appellate record (cont d) Potts v. State, 296 Ga. App. 242, 246 (3) (c) (2009); Johnson v. State, 313 Ga. App. 895, 897 n.8 (2012) We pause to note that although the State provided citations to the record in its brief, the State's record citations are unhelpful as they do not correspond to the record before this Court, and in some instances, the State cites to documents and/or transcripts that are not in the record before us. We remind the State that this Court will not cull the record on a party's behalf. Making a good appellate record (cont d) Payne v. State, 338 Ga. App. 677, 683 n4, 2016) The Court notes the unhelpful nature of the State's brief. All told, it is six pages long, including a cover page and a certificate of service, and contains only one record citation. The majority of the brief simply recites boilerplate legal standards, with no argument as to how those standards apply here. One of the few sentences of actual argument refers to this matter as a murder case. The State clearly gave this appeal far less attention than did either the defense or this Court, and that is troubling. Making a good appellate record (cont d) Shank v. State, 290 Ga. 844, 849 (5) (c) (2012) all of those involved in the criminal justice system, including defense counsel and defendants, have a duty to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. 21

22 Making a good appellate record (cont d) Owens v. State, 303 Ga. 254 (2018) There are signs that this message is getting through to some people... But it is clear that there remain far too many participants in our criminal justice system who are not paying sufficient attention to this problem. So this Court now moves from request to direction. Contact information Robert W. Smith, Jr. General Counsel, Prosecuting Attorneys Council of Georgia 1590 Adamson Parkway, 4th Floor Morrow, Ga (770) rwsmith@pacga.org 22