Johnson v. State

FINAL COPY




                      S18A1277. JOHNSON v. THE STATE.


       HINES, Chief Justice.

       John Johnson was convicted of murder but was granted a new trial. The

State appealed, and the trial court entered an order denying Johnson’s motion

for appeal bond. Johnson now appeals from that order, contending that it is

directly appealable pursuant to OCGA § 5-7-51 and that the denial of bond

violates the same statute. For the reasons that follow, which differ from those

given by the trial court, we affirm.

       Johnson was charged with murder and related crimes in 2006, was granted

pretrial bond, was tried before a jury in 2014, was convicted of felony murder

and possession of a firearm during the commission of a felony, and was

sentenced to life imprisonment for the murder and a consecutive five-year term


       1
         OCGA § 5-7-5 provides: “In the event the state files an appeal as authorized in this
chapter, the accused shall be entitled to be released on reasonable bail pending the
disposition of the appeal, except in those cases punishable by death. The amount of the bail,
to be set by the court, shall be reviewable on direct application by the court to which the
appeal is taken.”
for the firearms charge. The trial court, however, granted his motion for new

trial and vacated the previously imposed sentences, and the State filed a notice

of appeal.2 Johnson subsequently filed a motion for appeal bond in the trial

court under OCGA § 5-7-5. After a hearing, the trial court denied that motion,

deciding that “the bond [Johnson] seeks is not, in fact, a supersedeas or appeal

bond to which OCGA § 5-7-5 applies, but is rather a pretrial bond, which would

put [him] back in his previous posture before trial in 2014,” and that the

pertinent question “is not whether [Johnson] should [be] granted bond pending

the outcome of the State’s appeal, but whether [he] should be released on bond

while he is awaiting a new trial on the charges against him.” The trial court

examined the circumstances and concluded that Johnson “should not be released

on bond prior to his new trial.” Although Johnson did not obtain a certificate

of immediate review from the trial court, he filed an application for

discretionary review, which we granted to consider both the appealability and

the merits of the order denying bond.3

      2
         The State’s appeal was docketed in this Court as Case No. S18A1275, which is
currently scheduled for oral argument in October 2018.
      3
        After the appeal was docketed, Johnson filed his brief, and he subsequently moved
this Court for an expedited ruling and withdrew his prior request for oral argument. We
granted Johnson’s motion to expedite. See Ingle v. State, 

 (

. We first consider whether the denial of Johnson’s appeal bond is

directly appealable. Johnson relies on the second sentence of OCGA § 5-7-5,

which provides that “[t]he amount of the bail, to be set by the court, shall be

reviewable on direct application by the court to which the appeal is taken.” This

sentence must be read, Johnson argues, to include review of a denial of bail

pending an appeal by the State. For purposes of this appeal only, we assume

that this provision of OCGA § 5-7-5 does not provide for direct review of the

denial of bail. The Appellate Practice Act (APA), OCGA §§ 5-6-30 through 5-

6-51, allows appeals by defendants to be taken from “[a]ll final judgments, that

is to say, where the case is no longer pending in the court below . . . .” OCGA

§ 5-6-34 (a) (1). In Humphrey v. Wilson, 

 (1) (

)

(2007), we overruled our previous precedent requiring compliance with the

interlocutory appeal provisions of OCGA § 5-6-34 (b) and held that the denial

of the request for bail pending a warden’s appeal in a habeas case was a final

judgment. 

 (1). Likewise, we view the denial of Johnson’s

motion for appeal bond as a final judgment.




281) (1995). Cf. Foster v. State, 

 (

) (1973).

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      The trial court erred in characterizing that motion as one for pretrial bond.

“The interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) are

required to obtain review of an order denying or setting pre-trial bond.”

Mullinax v. State, 

 (1) (

) (1999). Johnson’s case,

however, is currently at an appellate stage and will not return to a pretrial stage

unless and until we affirm the grant of a new trial when we consider the State’s

appeal.   Moreover, during the State’s appeal, Johnson’s case cannot be

considered to be “pending in the court below,” OCGA § 5-6-34 (a) (1), because

the grant of a motion for new trial “shall be considered a final order” for

purposes of any ensuing appeal by the State. OCGA § 5-7-2 (c). Accordingly,

we conclude that Mullinax is inapplicable, that the denial of Johnson’s motion

for appeal bond is directly appealable by Johnson, and, therefore, this appeal is

not subject to dismissal for failure to obtain a certificate of immediate review as

required by OCGA § 5-6-34 (b).

      2. Turning to the merits, Johnson relies on the first sentence of OCGA §

5-7-5, which provides that, “[i]n the event the state files an appeal as authorized

in this chapter, the accused shall be entitled to be released on reasonable bail

pending the disposition of the appeal, except in those cases punishable by


                                        4
death.” The initial condition of the statute is met, as the State did file its appeal

as authorized in Chapter 7 of Title 5 of the Georgia Code, the same chapter that

includes this bail provision. See OCGA §§ 5-7-1 (a) (8), 5-7-2 (c). Johnson

insists that he is therefore “entitled to be released” under OCGA § 5-7-5 because

the State has not in any manner sought the death penalty in his case, and that, as

a result, the case does not come within the exception for “those cases punishable

by death.” The State, however, argues that Johnson’s case is “punishable by

death” because he was charged with murder and the death penalty is one of the

sentencing options provided for that crime. See OCGA §§ 16-5-1 (e) (1) (“A

person convicted of the offense of murder shall be punished by death, by

imprisonment for life without parole, or by imprisonment for life.”); 17-10-30

(b) (requiring consideration of mitigating and aggravating circumstances in

cases of offenses, other than aircraft hijacking and treason, “for which the death

penalty may be authorized”).

      In construing OCGA § 5-7-5, we “presume that the General Assembly

meant what it said and said what it meant and so we must read the statutory text

in its most natural and reasonable way, as an ordinary speaker of the English

language would. The common and customary usages of the words are important,


                                         5
but so is their context,” which includes not only the statute’s other provisions

and its structure and history, but also the constitutional, statutory, and common

law “that forms the legal background of the statutory provision in question.”

Blackwell v. State, 

 (4) (

) (2018) (citation and

punctuation omitted). The word “‘punishable’ is not a term of art and has an

ordinary meaning.” United States v. Mangahas, 

, 224 (C.A.A.F.

2018). And the phrase “punishable by death” has long been used to define the

term “capital” felony or offense. State v. Ameer, No. S-1-SC-36395, 

, at *2 (N.M. April 23, 2018); Mills v. Moore, 786 S2d 532, 538 (Fla.

2001).

      Consistent with the ordinary use of this terminology, this Court has held

that, although certain offenses like armed robbery can no longer be considered

capital felonies, murder is “punishable by death” and remains a “capital felony,”

as those two phrases are used in OCGA § 17-7-70. Weatherbed v. State, 

 (

) (1999). Cf. Orr v. State, 

 (1)

(

) (2003). The reason is that murder “belongs to a class of case

in which the death penalty can, under certain circumstances, be imposed,” as

distinguished “from that class in which under no circumstances would death


                                       6
ever be inflicted as a penalty for the violation of the same.” Weatherbed, 

 (citation, punctuation and emphasis omitted). And “[t]he fact that the

State has chosen not to pursue the death penalty does not change the class of

case to which it belongs.” 

 (emphasis in original). Moreover,

federal circuits interpreting the phrase “punishable by death” in a statute of

limitation agree that this language, as with similar language in other statutes,

reflects the serious nature of the offense, and that whether an offense is

“punishable by death” depends on whether the statute dealing with that offense

authorizes death as a punishment, rather than whether the prosecution seeks the

death penalty or whether the death penalty is available in the circumstances of

a particular case. United States v. Payne, 

 (2d Cir. 2010). See

also United States v. Ealy, 

 (4th Cir. 2004) (certain federal

statutory murder offenses were “punishable by death” even if the death penalty

could not constitutionally be imposed because the prosecution did not allege any

of the statutory aggravating factors in the indictment); OCGA § 17-10-31 (a)

(recognizing that an offense may be “punishable by death” and yet a sentence

of death be prohibited in the absence of a finding of at least one statutory

aggravating circumstance). Johnson argues in his appellate reply brief that


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OCGA § 5-7-5 excepts only cases punishable by death, but Weatherbed was

dealing with a statute, OCGA § 17-7-70 (b), that likewise excepted from its

application “cases” that were “punishable by death.” See also Neal v. State, 

 (

) (2012) (Hunstein, C. J., concurring, joined by

all Justices, similarly holding that our appellate jurisdiction over “cases” in

which a sentence of death “could be imposed” includes all murder cases).

      We can discern no reason from the immediate context of OCGA § 5-7-5

or from its legal background to interpret the phrase “cases punishable by death”

in that statute in any manner different from our interpretation of OCGA § 17-7-

70 (b) in Weatherbed. It follows that Johnson’s murder case comes within the

exception clause of OCGA § 5-7-5. The question then becomes what effect that

statute has on a case that comes within its exception clause. The primary clause

of OCGA § 5-7-5 providing that “the accused shall be entitled to be released”

does not govern Johnson’s case. But does this mean that the statute has the

effect of absolutely prohibiting bail in all murder cases where an appeal by the

State is pending? Or is the decision regarding bail on appeal left in some

measure to the trial court’s discretion?




                                       8
      Legislative exceptions in statutes should be interpreted according to the

rules of construction set out above, see Blackwell, 

 (4), and

“applied only so far as their language fairly warrants.”            Sawnee Elec.

Membership Corp. v. Ga. Pub. Svc. Comm., 

 (

)

(2001) (citation and punctuation omitted). The general rule of OCGA § 5-7-5

is that an accused is automatically entitled to reasonable bail pending an appeal

by the State. The exception removes cases punishable by death from that

general rule. Accordingly, an accused in such a case is clearly not automatically

entitled to bail pending the State’s appeal. But OCGA § 5-7-5 does not purport

to make any special provision for such cases. It does not say, for instance, that

an accused has the right to have a trial court exercise its discretion to decide

whether bail is appropriate in his case. And it does not say that bail is never

allowed in such cases. Moreover, viewing the exception clause of OCGA § 5-7-

5 in context with the second sentence of the statute highlights the absence of any

special provision for the denial of bail, as that second sentence expressly

mentions only review of the amount of bail, not review of a denial of bail. In

cases such as this one where the offense occurred before July 1, 2013, “OCGA

§ 5-7-1 et seq. must be construed strictly against the State and liberally in favor


                                        9
of the interests of defendants.” State v. Outen, 

 (

) (2011) (citation and punctuation omitted). Cf. OCGA § 5-7-6 (“This

chapter shall be liberally construed to effectuate the purposes stated in this

chapter.”); Ga. L. 2013, p. 222, §§ 3, 21 (enacting OCGA § 5-7-6 and applying

it only to offenses which occur on or after July 1, 2013). And interpreting

OCGA § 5-7-5 as leaving the grant or denial of bail in the trial court’s discretion

would have the advantage of limiting the reach of the exception clause to a less

drastic departure from the general statutory rule. Nevertheless, because the

exception clause has no language that could be construed as a provision for bail

in cases punishable by death, we cannot say that it is possible to determine from

OCGA § 5-7-5 alone whether bail pending appeal by the State can be granted

within the trial court’s discretion and what is the extent of any such discretion.

      The APA has no general appellate provisions for appeal bonds that apply

to appeals by criminal defendants, but there is such a provision in OCGA § 17-

6-1 (g).4 Under that statute, “[n]o appeal bond shall be granted to any person

      4
       In its entirety, OCGA § 17-6-1 (g) reads:
              No appeal bond shall be granted to any person who has been convicted of
      murder, rape, aggravated sodomy, armed robbery, home invasion in any degree,
      aggravated child molestation, child molestation, kidnapping, trafficking in cocaine or
      marijuana, aggravated stalking, or aircraft hijacking and who has been sentenced to
      serve a period of incarceration of five years or more. The granting of an appeal bond

                                           10
who has been convicted of murder [or certain other enumerated felonies] and

who has been sentenced to serve a period of incarceration of five years or more.”

No offense enumerated in that statute other than murder is punishable by death,

with the possible exception of the rare case of aircraft hijacking. See OCGA §§

16-5-44 (c), 17-10-30 (a); Blackwell v. State, 

 (

) (2016). OCGA § 17-6-1 (g) also provides that “[t]he granting of an appeal

bond to a person who has been convicted of any other felony offense or of

[certain misdemeanor offenses] shall be in the discretion of the convicting

court.” As a result, if OCGA § 17-6-1 (g) was read as extending to the context

of appeal bonds in appeals by the State, it would conflict with the general rule

of automatic entitlement to bail in OCGA § 5-7-5 with respect to almost every

offense it covers, including virtually every type of felony other than murder. In

short, we fail to see how OCGA § 17-6-1 (g) includes appeal bonds in State

appeals that involve murder when it conflicts with another appeal bond statute



      to a person who has been convicted of any other felony offense or of any
      misdemeanor offense involving an act of family violence as defined in Code Section
      19-13-1, or of any offense delineated as a high and aggravated misdemeanor or of any
      offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting
      court. Appeal bonds shall terminate when the right of appeal terminates, and such
      bonds shall not be effective as to any petition or application for writ of certiorari
      unless the court in which the petition or application is filed so specifies.

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in every other type of case, when it mentions nothing about any State appeals,

and when the conflicting statute expressly governs bail pending an appeal by the

State.

         Although OCGA § 17-6-1 (g) cannot be applied to Johnson’s murder case

and there is no other appeal bond statute in felony cases5 besides OCGA § 5-7-5,

we still must answer the questions of whether bail pending appeal can be

granted to Johnson in the trial court’s discretion and, if so, what is the extent of

that discretion. In the absence of clear statutory direction, we look to the

relevant principles under our case law. Under our precedents, there is no

constitutional right to bond pending appeal, and whether to grant or deny such

bail rests in the sound discretion of the trial court. See Getkate v. State, 

 (

) (2004); Vanderford v. Brand, 

 (2)

(

) (1906). In 1976, prior to the enactment of OCGA § 17-6-1 (g), this

Court recognized Georgia’s lack of “standards by which to determine whether

bail pending appeal [by a defendant] should be granted or denied,” and so

looked to both federal statutory law and to the ABA Standards for Criminal



         5
        We note that OCGA § 17-6-1 (b) (1) mandates appeal bonds for persons charged
with a misdemeanor.

                                        12
Justice 21-2.5 (1974). Birge v. State, 

 (

) (1976).

The ABA Standards are more demanding than those set forth for pretrial bail in

OCGA § 17-6-1 (e), as they mandate certain findings in addition to

consideration of the factors relevant to pretrial release, as well as the nature of

the crime and length of sentence imposed. This Court adopted these standards

and added one requirement found only in the federal statute, that the appeal is

not frivolous or taken for delay. Birge, 

. The federal statute

cited in Birge was repealed in 1984 by an act that made it more difficult for

defendants to obtain bail pending appeal. See 

 (b); United States

v. McCahill, 765 F2d 849, 850 (9th Cir. 1985). In 1983, still before OCGA §

17-6-1 (g) was enacted, this Court declined to apply the Birge standards to a

defendant convicted of the capital crime of murder or even to adopt any other

standards, because such defendants should be treated differently due to the more

heinous nature of the crime. Hardin v. State, 

 (

)

(1983). Hardin made it clear that “whether to grant a defendant bond on [his]

appeal following conviction for murder is a matter committed entirely to the

discretion of the trial court” and that “the mere fact that the defendant stands




                                        13
convicted of murder is sufficient in and of itself to explain why an appeal bond

is denied.” 

      The same sources considered by Birge for guidance in granting or denying

a criminal defendant bond during his appeal have also addressed the issue of

bond pending appeals by the prosecution. The ABA Standards generally

provide rather lenient rules in this regard, but they do not address the issue in the

context of prosecution appeals from post-verdict decisions such as the grant of

a new trial, because it is a premise of the standards that “such rulings should not

give rise to prosecution appeals.” ABA Standards for Criminal Justice 21-1.4

(c) & Commentary (2nd ed. 1980) (unchanged in relevant part from the 1974

edition). The United States Code, on the other hand, does provide for an appeal

by the prosecution from an order “granting a new trial after verdict or judgment

. . . .” 

. And the decision regarding the defendant’s release or

detention pending the appeal is governed by 

, the same federal

statute that governs pretrial release. 

 (c). See also 8 CJS Bail §

65 (“Bail pending a state’s appeal is generally subject to the requirements for

pretrial bail, unless the state appeals from the dismissal of the charges.”).




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      We have found no authority that, in the absence of a statutory provision,

bail pending appeal should be absolutely prohibited in any case. To the

contrary, our precedent requires that, if there is no statutory direction, whether

to grant bail pending appeal must be left in the sound discretion of the trial

court. See Hardin, 

; Birge, 

; Vanderford, 

 (2). Cf. OCGA § 17-6-1 (g) (prohibiting bail pending an appeal by

the defendant in certain cases). Although OCGA § 5-7-5 grants most criminal

defendants automatic entitlement to bail pending an appeal by the State, there

is no statutory provision for such bail pending the State’s appeal in the capital

case of murder. Consequently, whether to grant bail pending an appeal by the

State in murder cases comes within the sound discretion of the trial court. This

does not mean, however, that the rule of Hardin applies so as to allow the trial

court absolute discretion to deny bail pending appeal in a murder case solely

because the defendant stands convicted of murder. Johnson does not stand

before us as a convicted defendant who is appealing his murder conviction.

Because the trial court’s discretion is not absolute in this case, we will identify

the standards that govern its exercise of discretion and inform our review.




                                        15
      As in Birge, we can look for guidance from outside sources, but we should

also seek to be consistent with the related Georgia statutory scheme even though

the General Assembly has not yet made it so comprehensive as to set forth a

provision specifically governing bail in murder cases involving an appeal by the

State. See Snapper Power Equip. Co. v. Crook, 

 (1) (

) (1992) (courts may fill in legislative gaps by looking to, inter alia,

other relevant statutes as this Court has done). After Birge and Hardin, the

General Assembly took an even more strict approach to criminal appeal bonds

in appeals by the defendant when it prohibited them for murder and certain other

felonies by its enactment of OCGA § 17-6-1 (g). But the General Assembly

never changed its pre-existing approach in OCGA § 5-7-5 for bail pending

appeal by the State. Because it provides for automatic entitlement to bail for

virtually every felony except murder, that approach is far less strict, to say the

least, than are the approaches for bail pending appeals by criminal defendants

in OCGA § 17-6-1 (g), Birge, and Hardin. It would therefore make little sense

to apply the full weight of any of those much stricter rules to bail pending the

State’s appeal in a murder case, where the trial court has determined that the

defendant’s conviction was improperly obtained. Nevertheless, we recognize


                                       16
that the General Assembly has chosen to treat murder cases differently in OCGA

§ 5-7-5, and trial courts must be allowed some level of discretion to deny

requests for bail pending appeals by the State in such cases. We conclude that

the discretion of trial courts in these cases should be governed by the standards

for deciding whether to grant pretrial bail, which are the standards ordinarily

used in other jurisdictions for appeals by the State if the prosecution is not

terminated by dismissal, including appeals in federal courts from the grant of a

new trial. By this holding, we do not mean that the trial court was correct that

Johnson is seeking a pretrial bond rather than an appeal bond. Again, his case

is currently at an appellate stage until we consider the State’s appeal. In the

meantime, however, it is appropriate to evaluate Johnson’s request for an appeal

bond by the standards for pretrial bail in OCGA § 17-6-1 (e). Because the trial

court undertook such an evaluation and explained its reasons, and nothing in its

order or in the record shows that it manifestly or flagrantly abused its discretion,

the denial of Johnson’s motion for appeal bond is affirmed. See Constantino v.

Warren, 

 (2) (

) (2009); Henry v. James, 

 (5) (

) (1994).

      Judgment affirmed.        Melton, P. J., Benham, Hunstein, Nahmias,

Blackwell, Boggs, and Peterson, JJ., concur.

                                        17
                          Decided August 27, 2018.

      Murder. Fulton Superior Court. Before Judge LaGrua.

      Brian C. Tevis, for appellant.

      Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Marc A.

Mallon, Assistant District Attorneys; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General,

for appellee.




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