Georgia case law updates and legal news
Edited By George Washington

The Atlanta Gleaner.

February 09, 2023.

State v. Arroyo, No. S22G0593, 2023 WL 1786085 (Ga. Feb. 7, 2023)
#criminal law #motion to suppress #cocaine #drugs #punk’d
Jerry Arroyo, who was charged with trafficking in cocaine, filed a pretrial motion to suppress evidence obtained pursuant to a search warrant for his apartment. Arroyo argued that the warrant was not supported by probable cause because it relied upon evidence illegally obtained in violation of the Fourth Amendment to the United States Constitution, namely, a drug-sniffing dog's positive alert for illegal drugs within the curtilage of his apartment. The trial court reserved ruling on the motion pretrial, then denied the motion after the jury was impaneled and sworn. After the State rested its case, the court sua sponte changed course, granting the motion to suppress and ordering a mistrial without prejudice based on a finding that the dog had entered the curtilage of the apartment when it sniffed immediately in front of Arroyo's door.

Relying on OCGA § 5-7-1 (a) (4), which permits the State to appeal from certain orders “suppressing or excluding evidence illegally seized” in criminal cases, the State appealed the trial court's ruling. The Court of Appeals affirmed.

Supreme Court of Georgia granted certiorari, asking the parties to address (1) whether the Court of Appeals had jurisdiction to hear the merits of the State's appeal, and (2) if so, whether the Court of Appeals erred in affirming the trial court's ruling on the motion to suppress. Because OCGA § 5-7-1 (a) (4) did not authorize the State's appeal, Georgia Supreme Court holds that the Court of Appeals lacked jurisdiction over the case. Their judgment is vacated and remanded with instructions to return the case to the trial court.

Under the plain language of OCGA § 5-7-1 (a) (4), the State may appeal “from an order ... suppressing or excluding evidence illegally seized” only if the motion to suppress or exclude was both “made and ruled upon prior to” either “(1) the impaneling of a jury or (2) the defendant being put in jeopardy.” OCGA § 5-7-1 (a) (4). “Jeopardy attaches when the jury has been impaneled and sworn or in a bench trial, when the judge begins to receive evidence.”

Here Arroyo “made” his motion to suppress before “the impaneling of a jury” and before he was “put in jeopardy.” But his motion was not “ruled upon” before either of those two events. It was only after the jury was impaneled and after jeopardy had attached that the court ruled on the motion to suppress.

Accordingly, OCGA § 5-7-1 (a) (4) did not authorize the State to appeal the trial court's order granting Arroyo's motion to suppress evidence seized from his apartment, and the Court of Appeals lacked jurisdiction to rule on the merits of the State's appeal. 

The State argues that, although the trial court did not rule on the motion to suppress until after the jury was impaneled and Arroyo was put in jeopardy, its appeal nevertheless fell within the scope of OCGA § 5-7-1 (a) (4) because the court granted a mistrial, thereby returning the case to a pretrial status. This argument, however, finds no support in the language of OCGA § 5-7-1 (a) (4). 

The State argues the Court should create an exception to OCGA § 5-7-1 (a) (4) “when the trial court grants a motion to suppress midtrial” to “ensure that the intent of the legislature authorizing the State to appeal specific rulings is upheld.” Georgia Supreme Court denies this argument — holds they lack authority to create a judicial exception to the statutory requirements for appellate review. 

Court of Appeals judgment is vacated. Remand to the trial court for further proceedings consistent with the opinion.

Hamon v. Connell, No. S22G0405, 2023 WL 1786090 (Ga. Feb. 7, 2023)
#wrongful death #indispensable party #you’re leaving money on the table
This case is about whether decedent’s sole surviving child had the right, under equitable principles, to pursue a claim under the Wrongful Death Act, OCGA § 51-4-1 et seq. (the “Act”), when the decedent’s widow allegedly refused to do so.

As alleged in the complaint,  James Isaac Dickens, Jr. died on February 15, 2018. The plaintiff is Diane Dickens Hamon — an adult and Dickens's sole surviving child. At the time of his death, Dickens was married to, but had long been separated from, Hamon's mother, Lisa Dickens, who “refused” to bring a wrongful death claim in her capacity as Dickens's surviving spouse. In an effort to preserve the wrongful death claim, Hamon filed this action, in both her individual capacity as Dickens's surviving child and in a representative capacity for Lisa Dickens. The complaint also asserted that Hamon intended to file a motion to add Lisa Dickens as an indispensable party to the action.

The defendants are William Clark Connell, M.D., and South Georgia Emergency Medicine Associates, P.C. In their motion for judgment on the pleadings, defendants argue that Hamon lacked the right to assert a claim for the wrongful death of her father because the Act gave Lisa Dickens, as Dickens's surviving spouse, the sole right to bring the claim. See OCGA § 51-4-2 (a) (“The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.”). 

Hamon opposed the motion. Following a hearing, the trial court issued an order denying a judgment on the pleadings. The trial court noted that Georgia's appellate courts previously have recognized equitable exceptions to the “spousal standing” rule in favor of a decedent's surviving children. Based on consideration of the particular facts and circumstance of this case, the Court found that the Plaintiff, as surviving child of the decedent, fit under an equitable exception to the “spousal standing” rule and was a proper party to bring the wrongful death action.

The Court of Appeals reversed the trial court's denial of the motion for judgment on the pleadings, concluding that the trial court impermissibly applied the principles of equity. In making this determination, Court of Appeals distinguished cases in which Georgia Supreme Court and the Court of Appeals had permitted a child under similar circumstances to pursue a wrongful death action under equitable principles as only applying to minor children. 

On appeal, Hamon asserts that the Court of Appeals erred in reversing the trial court's denial of the motion for judgment on the pleadings.

The parties do not dispute that the Act grants a decedent's surviving spouse the right to pursue a wrongful death claim and grants that right to the decedent's “child or children, either minor or sui juris,” in the event there is no surviving spouse. OCGA § 51-4-2 (a). However, as the parties further acknowledge, under certain circumstances, Georgia courts have applied equitable principles to allow someone other than the decedent's surviving spouse to pursue a wrongful death claim to benefit a decedent's children. The ultimate disagreement is whether these equitable principles apply with equal force to a decedent's adult children as they do to minor children.

In Brown v. Liberty Oil & Refining Corp., 261 Ga. 214 (1991), Georgia Supreme Court applied equitable principles to allow a decedent's children to pursue a wrongful death action when the surviving spouse refused to do so. In that case, the decedent's minor children brought a wrongful death action arising out of a collision between their mother's car and a truck operated by the defendant's employee, which resulted in the mother's death. Although the mother was survived by a spouse, the children alleged that he “has abandoned them; cannot be located; and would not, in any event, pursue the claim for wrongful death.” Brown, 261 Ga. at 214. 

In reversing here, the Court of Appeals applied this principle, but made a distinction between minor and adult children. This distinction was in error. Nearly a century ago the Court construed an earlier version of OCGA § 51-4-2 that permitted “minor or sui juris” children to recover for their father's homicide. See Peeler v. Central of Ga. R. Co., 163 Ga. 784 (1927). In Peeler, the Court noted the statute had recently been amended to add a right of recovery for sui juris children in addition to minor children, and they reasoned that the amendment meant the statute now permitted recovery to “all children without regard to actual dependency, or the dependency which might be implied from minority.”

In present time, Georgia Supreme Court concludes that the use of the same language in the Act supports that no distinction may be drawn between minor and adult children with regard to the right of recovery for wrongful death. Here Hamon alleged that she is Dickens's child and that Lisa Dickens “refused” to bring a wrongful death action as the surviving spouse. The Court of Appeals erred in reversing the trial court's denial of Appellees’ motion for judgment on the pleadings.