State v. Tyson

¶1A jury convicted Samuel Seymore Tyson of child molestation, but the Court of Appeals of Georgia reversed on the grounds that the trial court should have granted Tyson’s motion to suppress evidence.1 We granted the writ of certiorari to consider whether the court of appeals correctly concluded that Tyson’s warrantless arrest was illegal and therefore the evidence seized incident to his arrest should have been suppressed. Addressing first our jurisdiction to hear this case, we hold that under our state constitution the State of Georgia may seek discretionary review in the Supreme Court of any decision by the court of appeals in the defendant’s favor in a criminal case. Because we agree with the state that the arresting officer had probable cause to arrest Tyson, we reverse.

¶21. Tyson has filed a motion to dismiss the writ of certiorari as improvidently granted, citing OCGA §§ 5-7-1 to 5-7-3, and sought to be released on bail under OCGA § 5-7-5. These code sections provide *691statutory authority for the state to appeal decisions in criminal cases.

¶3Historically, the prosecution in the United States has had a limited right to appeal in criminal cases.2 This general principle is based on the fundamental rule of the common law embodied in the Fifth Amendment to the United States Constitution: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”3 In 1973, the Georgia General Assembly enacted OCGA § 5-7-1, which gives the state a limited right to appeal certain orders, decisions, and judgments in criminal cases to the court of appeals or supreme court, and OCGA § 5-7-3, which extends the same right to the state in proceedings by certiorari.4 This legislation was part of a national trend to broaden the prosecution’s right to appeal in criminal cases consistent with national standards being developed by the American Bar Association.5

¶4The national standards distinguish between the prosecution’s right to appeal from a trial court decision and its right to seek discretionary review of an intermediate appellate court’s opinion in favor of a criminal defendant. Both the ABA’s Standards Relating to Appellate Courts and Standards Relating to Criminal Justice make clear that the restrictions on the state’s right to appeal from a trial court’s decision should not apply to the state’s right to appeal from an intermediate appellate court’s decisions.6 “Where more than one level of appellate review exists, whenever an intermediate court has held in favor of a defendant-appellant, the prosecution should be permitted to seek further review in the highest court.”7

¶5Despite these standards, this Court has analyzed the state’s right to seek review of court of appeals’ decisions in the same way as the state’s right to appeal from trial court decisions. In State v. B’Gos,8 our first decision considering the state’s right to petition for certiorari, we held that we did not have jurisdiction to entertain the state’s petition in a criminal case. Although a 1916 constitutional amendment gave the Supreme Court authority “to require by certiorari or otherwise any case to be certified to the Supreme Court from the Court of Appeals for review and determination,” the majority in *692B’Gos concluded that “any case” did not include the state in a criminal proceeding.9 Yet, as the dissent in B’Gos pointed out, the express language of the constitutional amendment “conferred upon the Supreme Court the right to review by certiorari any and all judgments rendered by the Court of Appeals” without exception and did not restrict the application for review to defendants in criminal cases.10

¶6In 1973, the Georgia legislature enacted OCGA §§ 5-7-1 to 5-7-5 giving the state the right to file a direct appeal or take a proceeding by certiorari in certain criminal cases. Following the enactment of these statutes, this Court for the first time rejected a motion to dismiss the state’s application for certiorari in a criminal case.11 Subsequently, we held in State v. Moore12 that we had jurisdiction to entertain the state’s petition for certiorari after the court of appeals reversed a criminal conviction, citing our constitutional and statutory authority.13 Since the passage of the 1973 act, “this court has consistently granted the state’s applications for the writ in criminal cases when this court has deemed the application of the state to be meritorious.”14

¶7The Constitution of the State of Georgia of 1983 gives the Supreme Court the power to “review by certiorari cases in the Court of Appeals which are of gravity or great public importance.”15 This constitutional provision places ho limit on this Court’s certiorari jurisdiction. As a result, we have jurisdiction to review any decision of the court of appeals by certiorari so long as the case presents an issue of great concern, gravity, and importance to the public.16 Implicit in this right to review any case by certiorari is the state’s right to seek our review by certiorari of any decision of the court of appeals. The state may exercise this right because a defendant’s constitutional right against double jeopardy is not implicated when the state seeks discretionary review of an adverse decision by the court of appeals in a criminal case.

¶8Although we have previously relied on OCGA §§ 5-7-1 to 5-7-3 as the basis for our jurisdiction when the state seeks review of a court of appeals’ decision, our discretionary review powers are not limited to *693the specific situations enumerated in these code sections. To interpret the statutes as placing a limit on this court’s constitutional right to review cases would allow the legislative branch to restrict the power of the judicial branch in possible violation of the separation of powers.17 Moreover, limiting this court’s discretionary review by certiorari would have the effect of making the court of appeals the court of last resort in certain criminal cases, despite the importance of the issues to the public.

¶9Therefore, we hold that the constitutional provision providing for the Supreme Court to review by certiorari cases in the court of appeals gives the state the right to file a petition for certiorari for the review of any decision by the court of appeals in the defendant’s favor in a criminal case. We overrule our decision in B’Gos and other cases where we have held that the state did not have the authority under our constitution to seek certiorari from decisions of the court of appeals.18 Contrary to the dissent’s position, our holding does not render OCGA § 5-7-3 meaningless since it still applies to cases filed under chapter four of title five, which governs certiorari to superior courts.

¶102. After we granted the state’s petition for certiorari, Tyson moved to be released on bail. We conclude that the trial court did not abuse its discretion in denying Tyson’s motion and affirm.

¶113. The court of appeals reversed the jury’s verdict of guilty on the grounds that there was no probable cause for the warrantless arrest of Tyson and, therefore, the evidence obtained in the second search of his van should have been suppressed. A warrantless arrest is valid if there is probable cause to arrest. Probable cause exists “if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.”19

¶12We conclude that the police officer in this case had probable cause to arrest the defendant without a warrant. At the time Tyson was arrested, the officer knew that three people had reported seeing a man repeatedly fondle a young girl, two of the complainants had identified Tyson as the man molesting the child, and Tyson had admitted being accused of child molestation in the past, although he *694denied committing the act. In addition, the officer knew that Tyson’s van, which the officer had entered with Tyson’s consent, contained used latex gloves, a jar of petroleum jelly, several pairs of female underpants, and three loaded firearms, even though Tyson had said that there were no weapons in the van. Finally, the officer also knew that the alleged victim, her mother, and her grandfather were on their way to the police station to talk with police. The fact that the officer did not think he had probable cause to arrest is not controlling.20 Since the officer knew facts and circumstances sufficient to warrant a prudent person to believe that Tyson had committed an offense, the officer was authorized to arrest Tyson without a warrant. Because the arrest was legal, the trial court did not err in denying Tyson’s motion to suppress and admitting the evidence seized from the van.

¶134. The court of appeals also ruled that much of the sexually explicit material found in Tyson’s van was inadmissible under our decision in Simpson v. State 21In that case, we held that evidence of sexual paraphernalia found in the defendant’s possession is inadmissible in a prosecution for a sexual offense unless it can be linked to the crime charged. Since Tyson failed to object to the introduction of most of this evidence at trial, he did not preserve the issue for appeal.22 As for the two items of evidence to which Tyson did object as irrelevant, the possession of photographs of nude young girls can be linked to the crime of molestation of a young girl; we decline to reverse Tyson’s conviction based on the possibility that the other evidence, a nudist camp magazine, could not be linked to the crime charged.

¶14Judgment affirmed in Case No. S00A2019. All the Justices concur, except Benham, C. J, who dissents. Judgment reversed in Case No. S00G0606.

¶37concurring.

¶38I fully agree with Divisions 1 and 3 of the majority opinion. I also agree with the majority’s holding in Division 2 that the trial court did not err in denying Tyson’s motion to be released on bail. I take this opportunity to express my opinion that one in Tyson’s position could clearly seek bail pursuant to OCGA § 17-6-1 (e). I think that a person in like circumstances should be able to seek bail pursuant to that statute because, as a result of the Court of Appeals’ reversal of his conviction, such a defendant is in the same position as a defendant I *695who is under indictment, but who has not yet been tried. Under that statutory provision, the defendant would have the initial burden of production, but the State would bear the burden of persuasion. See Ayala v. State, 262 Ga. 704, 705 (1) (425 SE2d 282) (1993).

¶39Furthermore, a criminal defendant such as Tyson, who has obtained a reversal from which the State has sought certiorari, is in the same position as, and must be treated in a consistent manner with, a defendant who has procured a favorable trial court ruling which the State has appealed pursuant to OCGA § 5-7-1. In the latter situation, the defendant is entitled to seek release on reasonable bail pursuant to OCGA § 5-7-5. Because that statute does not itself provide any criteria upon which to base the decision to grant or deny bail, a trial court asked to make, such a decision must apply the same prerequisites found in OCGA § 17-6-1 (e) which it would apply where, as here, the State has petitioned for certiorari.

¶40In my opinion, therefore, a criminal defendant has a right to bail under the circumstances set forth in OCGA § 17-6-1 (e), whenever the State initiates an appeal or petitions for certiorari.