State v. Berky

Blackburn, Judge. In State v. Berky, 214 Ga. App. 174 (447 SE2d 147) (1994), the trial court granted the defendant’s pre-trial motion to dismiss following the State’s announcement upon the call of the case that it could not proceed as the trial court had suppressed the videotape of the DUI arrest. The police officer had been killed and the State could not meet traditional foundational requirements for admission of the videotape. Upon the State’s appeal, we joined an overwhelming majority of states and adopted the silent witness theory for admission of videotapes in Georgia, reversing the trial court’s grant of Berky’s motion to dismiss. On certiorari, the Georgia Supreme Court reversed our decision for lack of jurisdiction, finding that there was no basis for the State’s appeal of the granting of defendant’s motion to dismiss, notwithstanding the provisions of OCGA § 5-7-1 (a) (1), which grants to the State a right of direct appeal “[f]rom an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof.” The Supreme Court held that the dismissal resulted from a general evidentiary ruling by the trial court on the motion to suppress. Berky v. State, 266 Ga. 28 (463 SE2d 891) (1995). Our Supreme Court relied upon State v. Lavell, 214 Ga. App. 525 (448 SE2d 270) (1994), a case which did not involve a dismissal of the accusation, but rather was simply an interlocutory appeal of a general evidentiary ruling, that being the trial court’s suppression, on hearsay grounds, of the police report, where the police officer was unavailable to testify because he had been killed. Our Supreme Court further relied upon State v. Land-O-Sun Dairies, 204 Ga. App. 485, 487 (419 SE2d 743) (1992) a case in which the record reflected that the trial court granted defendant’s pre-trial motion to exclude the testimony of certain witnesses, a non [152] appealable general evidentiary ruling. Thereafter, the State requested that the court treat the motion as a motion to quash the indictment so that it could appeal the order. Over objection, the trial court agreed and granted the motion to quash. The State appealed, and this Court held that the State could not circumvent the statute and create avenues for appeal by requesting a trial court to convert an adverse general evidentiary ruling into a motion to quash the indictment, and that this Court had no jurisdiction because the order became one quashing the indictment only at the State’s request. Morris v. State, 262 Ga. 446, 447-448 (421 SE2d 524) (1992), cited by our Supreme Court, involved a double jeopardy issue. In mid-trial, the trial court dismissed the State’s case following the State’s failure to disclose the identity of an informant, after having been ordered to do so by the court. The State appealed, and this Court held that the trial court’s action constituted a dismissal of the indictment and the State was entitled to an appeal under OCGA § 5-7-1 (a) (1). The Supreme Court’s review on certiorari was limited to the merits of defendant’s motion to dismiss the State’s appeal on grounds of double jeopardy. The Supreme Court held that because the termination of the trial was improper, further prosecution was prohibited and therefore the State’s appeal should have been dismissed. This case, unlike those cited by the Supreme Court, involves an appeal by the State from a dismissal initiated by the defendant. It does not involve an intentional attempt to manipulate the court’s ruling so as to create a right of appeal as was the case in State v. Land-O-Sun Dairies, supra. Neither does it involve a double jeopardy issue as was the case in Morris v. State, supra. This case does involve a dismissal of the accusation, unlike State v. Lavell, supra, which was simply a general evidentiary interlocutory ruling with no dismissal of the accusation. In State v. McCard, 173 Ga. App. 504 (326 SE2d 856) (1985), we allowed the direct appeal by the State of the trial court’s grant of the defendant’s motion in limine to exclude the results of his blood-alcohol test. In doing so we relied on our Supreme Court’s answer to a certified question in State v. Strickman, 253 Ga. 287 (319 SE2d 864) (1984). Therein, our Supreme Court answered the following certified question from this Court: “ Although otherwise considered an interlocutory ruling, in a criminal case where the defendant’s pretrial motion in limine to suppress evidence is granted based upon allegations not involving illegal search and seizure, is the grant of such motion in limine subject to direct appeal by the state under OCGA § 5-7-1 (4)?’ ” (Emphasis supplied.) OCGA § 5-7-1 (a) (4) provides for an appeal from the State “[fjrom an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the [153] case of motions made and ruled upon prior to the impaneling of a jury.” Our Supreme Court held “that if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the state.” Strickman, supra at 288. The Supreme Court construed the language of OCGA § 5-7-1 (a) (4) liberally, finding that “the appeal statute [was] remedial in nature, so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal.” Id. Under the ruling of our Supreme Court in Berky, it would appear that it would be procedurally impossible for the State to initiate an appellate review of the “Silent Witness Theory” in Georgia. Although not before us in the present case, we are pleased to note that the 1996 legislature passed and the Governor signed House Bill 1235 to be codified at OCGA § 24-4-48 which provides for the admissibility of photographs, motion pictures, videotapes, and audio recordings where the authenticating witness is unavailable. We are bound by the decisions of our Supreme Court, and accordingly, our earlier opinion in this matter is hereby vacated, and we adopt the opinion of the Supreme Court. Opinion vacated and appeal dismissed. Birdsong, P. J., Pope, P. J., and Johnson, J., concur. Beasley, C. J., and McMurray, P. J., concur specially. Andrews, Smith and Ruffin, JJ., concur in the judgment only.