In the Supreme Court of Georgia

 Decided: September 22, 2014

 S14A1006. THE STATE v. HILL.

HINES, Presiding Justice.

This is an appeal by the State from the grant of David Hill’s extraordinary

motion for new trial following his convictions and sentencing for felony murder

and two aggravated assaults. For the reasons which follow, we reverse.

In 2002, Hill, Orlando Culler, and Trayeon White were jointly tried and

convicted of the November 18, 2001 felony murder of Alvita Waller and the

aggravated assaults of Terrell Mills and Anthony Hunter. Hill was sentenced

to life in prison for felony murder and to two probated sentences of fifteen years

for two counts of aggravated assault, to be served concurrently to each other and

consecutively to the sentence for felony murder. Hill filed a motion for new

trial on December 13, 2002, and amended it on April 18, 2003; the motion was

denied on July 17, 2003. Hill and his co-defendants appealed to this Court, and

their convictions were affirmed in 2004. See Culler v. State, 277 Ga. 717 (594
SE2d 631) (2004). Approximately eight years later, on April 11, 2012, Hill

filed an extraordinary motion for new trial, which he amended on April 23,

2013, and again on May 29, 2013. The judge who presided over the trial and

subsequent motions had retired, so a successor judge heard Hill’s extraordinary

motion for new trial. Following the hearing, that court issued an order on

October 22, 2013, granting Hill a new trial. The State filed a motion for

reconsideration on October 24, 2013, and the court entered an order on

November 6, 2013, withdrawing its prior order. After another evidentiary

hearing, on December 30, 2013, the successor court again granted Hill’s

extraordinary motion for new trial.

In the prior direct appeal, this Court noted that the evidence authorized the

jury to find that Hill, Culler, and White were at a home in Bibb County when

they decided to go to a nearby house, located on Amos Street, and retaliate for

the death of Culler's brother, who had been killed the previous day; along with

several others, the three men, who were armed with handguns, traveled to Amos

Street in two cars; they attempted to kick in the front door of the Amos Street

house, and when that failed, they began firing random shots into the house; one

of the three people inside the house, Waller, was shot in the head and killed; the

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intended target, Mills, was shot in the shoulder and injured; Hunter, who was

asleep in a back bedroom when the shooting occurred, was left unharmed once

the gunfire ended; an eyewitness testified that he watched the shooting and

heard shots being fired from three distinct guns; Culler later told a friend that he

had fired shots into the home, and thought he had killed Waller; ballistics

reports identified shell casings recovered from the scene as having been fired

fromat least two different guns, possibly more; and DNA testing identified a red

baseball cap recovered from the front yard of the Amos Street house as having

been worn by Hill. 

In his extraordinary motion for new trial, Hill alleged that he was entitled

to a new trial because of newly-discovered evidence involving a witness named

Shaneka Jackson (“Shaneka”). His claim was based on three arguments: (1)

Hill’s rights to due process under Brady v. Maryland, 373 U.S. 83 (83 SCt 1194,

10 LE2d 215) (1963) were violated because in 2001, Shaneka told Detective

Carl Fletcher, during his initial investigation, that Hill was at her house at the

time of the shooting, that the State failed to disclose this information to Hill

prior to trial, and that this alibi information was not included in the detective’s

police report or his transcribed interview with Shaneka; (2) under Timberlake

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v. State, 246 Ga. 488 (271 SE2d 792) (1980), if Shaneka’s testimony had been

admitted at trial, there is a strong likelihood that the verdicts would have been

different; and (3) the newly-discovered alibi evidence shows Hill’s actual

innocence, and this overcomes the circumstantial evidence upon which Hill was

convicted. 

The successor court found, inter alia, that Shaneka’s affidavit testimony

was credible and reliable, that Fletcher’s investigatory practices were unreliable

and not credible, and that a “fully-informed” jury should decide the question of

Hill’s involvement.1

It found in favor of Hill on all three of the bases of his

claim of newly-discovered evidence, vacated his convictions, and granted him

a new trial. 

The determination of this appeal must begin with an analysis of the

precepts of appellate review of the ruling. It is certainly true that this Court will

not disturb the first grant of a new trial on the general grounds in a criminal case

unless the trial court abused its discretion in granting it and the law and facts

1The successor court rejected the State’s contention that a “Motion to Vacate and Void” filed

by Hill in 2004, was substantially an extraordinary motion for new trial, and therefore, that the

present motion was a second extraordinary motion for new trial, which was procedurally barred by

OCGA § 5-5-41 (b). 

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require the verdict rendered. OCGA § 5-5-50

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; State v. Harris, 292 Ga. 92, 94

(734 SE2d 357) (2012). The trial court is to be given a significant amount of

deference in the exercise of its discretion in such a situation because it was an

observer of what transpired at trial; indeed, the trial judge has been referred to

as the “thirteenth juror.” State v. Harris, at 94. But, there is a significant

difference in consideration of a motion for new trial and an extraordinary

motion for new trial; extraordinary motions for new trial are “not favored,” and

“a stricter rule is applied to an extraordinary motion for a new trial based on the

ground of newly available evidence than to an ordinary motion on that ground.”

(Citation and punctuation omitted.) Crowe v. State, 265 Ga. 582, 590-591(15)

(458 SE2d 799) (1995). Furthermore, the discretion of a successor judge is

narrower in scope than that of the judge presiding at trial, and the successor

judge's factual rulings are not given the broad deference given to findings by the

presiding judge. State v. Harris supra at 95; State v. Clements, 289 Ga. 640 (1)

(715 SE2d 59) (2011). While this Court will still accord substantial deference

2OCGA § 5-5-50 provides:

The first grant of a new trial shall not be disturbed by an appellate court unless the appellant

shows that the judge abused his discretion in granting it and that the law and facts require the

verdict notwithstanding the judgment of the presiding judge.

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to a trial court's decision on an extraordinary motion for new trial and review its

ultimate ruling for an abuse of discretion, such discretion is not unfettered; the

trial court must exercise its discretion in conformity with the governing legal

principles, and the facts that the court is to find and those which must be

evaluated by this Court are those relevant to determining whether the legal

requirements have been satisfied. Ford Motor Co. v. Conley, 294 Ga. 530, 538

(2) (757 SE2d 20) (2014), citing State v. Pickett, 288 Ga. 674, 679 (4) (d) (706

SE2d 561) (2011). Indeed, if the trial court significantly misapplies the law or

makes a clear error with regard to a material finding of fact, the trial court's

exercise of discretion can be upheld only if this Court can reach the conclusion

that had the trial court used the correct facts and legal analysis, it would have

had no discretion to reach a different judgment. State v. Pickett, supra at 679 (4)

(d). Otherwise, there is an abuse of discretion as a matter of law. That is

precisely the situation in this case. The successor court clearly erred in regard

to material factual findings which resulted in that court’s improper grant of

Hill’s extraordinary motion for new trial. Additionally, the successor court

employed, in part, an erroneous legal analysis in finding in favor of Hill. 

The linchpin of the successor court’s ruling is Shaneka’s 2012 affidavit,

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to which the court gave full credit. However, there was no evidence, via

Shaneka’s affidavit or otherwise to support the successor court’s determination

that prior to trial, Shaneka told Detective Fletcher about an alibi for Hill. Her

2012 affidavit did not include an averment that she provided Fletcher with any

alibi information when he interviewed her.3 Moreover, the vague averments in

the affidavit did not provide any concrete evidence that Hill was not or could not

have been involved in the fatal shooting and assaults for which he was

convicted. Despite this lack of proof that Shaneka gave Fletcher exculpatory

information, the successor court leaped to the unwarranted conclusion that she

had provided such information. The court then used this erroneous finding of

fact as the foundation for its rulings in favor of Hill’s claims. 

3Shaneka’s 2012 affidavit stated in relevant part as to Hill’s alibi that on Sunday, November

18, 2001, she was living near the crime scene; that she was out socializing on Saturday evening,

November 17, 2001, and that in the early morning hours of November 18, several people returned

to her home to retrieve their vehicles; that Hill and White were in her home after midnight; that when

she returned home, she immediately went to bed but her friends (unnamed) were still in the house;

that although she was in the bedroom, she could hear what was said; that “at some point” a neighbor

came to the house and said that Culler’s brother had been shot to death; that she heard “people” in

her living room reacting emotionally to the news; that Hill, White, and “others” left together shortly

after learning of the death; that she “heard gunshots outside, somewhere in the neighborhood, after

the news about [Culler’s brother] was delivered but before the men departed”; shortly after the

crimes at issue, Fletcher had her brought to his office and after Fletcher and she “spoke off the record

for a while,” she gave a statement which was typed as she spoke; and that during Fletcher’s

questioning of her, he expressed dissatisfaction with what she was able to tell him and wanted her

to incriminate Hill, White and others, offering her inducements and making threats. 

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In regard to Hill’s claim of a violation of Brady v. Maryland, Hill had to

show that: (1) the State, which would include any part of the prosecution team,

possessed evidence favorable to him; (2) he did not possess the favorable

evidence and could not obtain it himself with any reasonable diligence; (3) the

State suppressed such favorable evidence; and (4) a reasonable probability that

the outcome of the trial would have been different had the favorable evidence

been disclosed to the defense. State v. James, 292 Ga. 440, 441 (2) (738 SE2d

601) (2013). And, Hill did not meet such burden. 

Again, Hill failed to show that the State either possessed or suppressed

any favorable evidence, because there is no evidence that Shaneka actually gave

Fletcher the alleged alibi information. Indeed, her 2001 statement to Fletcher,

which was provided to the defense prior to trial along with a witness list naming

Shaneka, was anything but exculpatory as to Hill. She named her then

boyfriend, two cousins, and an acquaintance, who allegedly were in her

apartment in the early morning hours prior to the shooting but did not mention

Hill. She also stated that she was in another room when she heard an individual

or individuals knock on the apartment door and enter the apartment; that she

heard loud talking and cursing after someone said that Culler’s brother had been

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killed, and in fact, she told “everybody to hold it down”; that she heard the

individuals who had arrived at the apartment leave; and that she heard gunshots

about five minutes after the unnamed individuals left her apartment. Thus, even

if Hill was one of the unnamed individuals who exited the apartment, and the

gunshots heard by Shaneka were indeed those resulting in the present crimes,

the expressed time line would not rule out Hill’s involvement. Thus, questions

of Hill’s diligence in ascertaining Shaneka’s knowledge about the night of the

shooting, or any potential impact on the outcome of trial need not be reached. 

It was also error for the successor court to find that Hill satisfied the

criteria of Timberlake v. State for granting a new trial on the basis of newly

discovered evidence. He had to satisfy the court that (1) the evidence at issue

came to his knowledge since his trial; (2) it was not owing to the want of due

diligence that he did not acquire it sooner; (3) such evidence is so material that

it would probably produce a different verdict; (4) the evidence is not merely

cumulative; (5) the affidavit of the witness herself should be procured or its

absence accounted for; and (6) the effect of the evidence would be more than to

merely impeach the credibility of a witness. Id. at 491 (1). Hill cannot satisfy

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even the threshold requirements of Timberlake.

The statements in Shaneka’s 2012 affidavit upon which Hill relies were

not new evidence in that they certainly did not come to Hill’s knowledge since

his trial. Accepting arguendo, the accuracy of the statements in Shaneka’s

affidavit, Hill was present and aware of Shaneka being at her home on the night

and time of the shooting, and also aware of her knowledge that Hill was there

as well. Furthermore, as noted, a witness list naming Shaneka and her

2001statement to police were provided to Hill pre-trial; therefore, Hill had

ample opportunity to secure her as a witness. The failure to satisfy even one of

the Timberlake requirements is cause for the denial of a new trial on the basis

of alleged newly discovered evidence. Davis v. State, 283 Ga. 438, 440 (2) (660

SE2d 354) (2008).

Finally, the successor court erroneously found that Hill should be granted

a new trial based on a claim of actual innocence, premised upon the 1916 case

of Joiner v. State, 17 Ga. App. 726 (88 SE 215) (1916). Even assuming that

Joiner, rather than Timberlake, is properly applied in this situation, that case

provided that a new trial should be granted

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if the conviction of the accused rests upon circumstantial

evidence alone, and the newly discovered evidence is direct

and positive in character as to the innocence of the defendant,

and such testimony would, if the witness be credited, produce

a different result on a second trial.

The alleged newly-discovered evidence is far from “direct and positive” as to

Hill’s innocence, and even if fully credited, does not refute the evidence of

Hill’s guilt adduced at trial; consequently, the offered evidence is unlikely to

produce a different result upon retrial. 

Simply, the successor court abused its discretion in granting Hill’s

extraordinary motion for new trial. 

Judgment reversed. All the Justices concur. 

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