Esposito v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: November 29, 2022
S22D1240, S23A0104. ESPOSITO v. THE STATE.
BOGGS, Chief Justice.
This Court granted the application for discretionary appeal
filed by John Anthony Esposito in this case because it appeared that
“[t]he establishment of a precedent [wa]s desirable” on the issue of
whether a trial court may refuse to follow a precedent of the Court
of Appeals based solely on the trial court’s disagreement with that
precedent. Supreme Court Rule 34 (2). Accordingly, we address that
specific issue below, holding that trial courts indeed are bound by
the precedents of the Court of Appeals. Nevertheless, because we
perceive no reason for this appeal to proceed on its merits beyond
addressing that issue, we hereby vacate our order granting the
application for discretionary appeal, deny the application for
discretionary appeal, and dismiss this appeal, thus leaving the trial
court’s judgment in this case undisturbed.
1. This case arises out of the filing of an extraordinary motion
for a new trial by Esposito on September 16, 2021, which was just
over three months after his federal habeas proceedings had
concluded upon the denial of certiorari by the United States
Supreme Court. See Esposito v. Ford, __ U. S. __ (141 SCt 2727, 210
LE2d 886) (2021). That extraordinary motion and its included
motion for DNA testing were denied by the trial court on June 11,
2022. On July 11, 2022, Esposito filed in this Court an application
for discretionary review of that denial. See OCGA § 5-6-35 (a) (7)
(providing that an application for discretionary appeal is required to
appeal the denial of an extraordinary motion for a new trial). This
Court granted that application on August 8, 2022, specifically
directing the parties to address this question: “May a trial court
refuse to follow a precedent of the Court of Appeals on the ground
that it was erroneous, when that precedent has not been overruled?”
Despite our clear direction to address this question, the State filed
a brief on September 28, 2022, in which it all but entirely ignored it.
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Thus, on October 6, 2022, this Court ordered the State to file a
substitute brief, which it did on October 11, 2022.
2. In denying Esposito’s extraordinary motion for a new trial
and its included motion for DNA testing, the trial court used a
proposed order prepared by Senior Assistant Attorney General
Sabrina Graham. In that order, the trial court denied the motions
on three alternative grounds, the first of which concerned this
statutory provision:
(7) The court shall grant the motion for DNA testing if it
determines that . . . all of the following have been
established:
···
(B) The evidence to be tested has been subject to a
chain of custody sufficient to establish that it has not
been substituted, tampered with, replaced, or
altered in any material respect[.]
OCGA § 5-5-41 (c) (7), (c) (7) (B) (emphasis supplied). The trial court,
quoting this provision, concluded:
Defendant has not shown that the evidence has not been
“altered in any material respect” regarding the two tree
limbs and the eyeglasses. Specifically, Defendant has not
shown that the DNA of others has not been transferred to
the objects over the past twenty years.
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The trial court then stated that it “acknowledge[d]” the
unanimous 3-judge decision of the Court of Appeals in White v. State,
which held in its core analysis as follows:
It was not up to the trial court to determine from the
testimony presented whether sufficient DNA, if any, was
transferred to the spandex pants during the attack on the
victim or whether it had deteriorated. Rather, the proper
question was whether the pants were in a condition that
would allow for the requested test to be conducted.
Although the witnesses were doubtful that the pants
might still contain testable biological material, they could
not categorically deny that testable and usable DNA
would be found when the pants were subjected to the
GBI’s testing protocol.
Moreover, that any DNA transferred to the pants
during the struggle between the victim and the
perpetrator may have degraded over time, been altered,
or become unusable does not speak to whether the
evidence – the pants – were available for testing and had
been subject to a chain of custody. Under the DNA
statute, the evidence to be tested is not the same as the
DNA potentially contained therein, as the statute draws
a clear distinction between the two. See OCGA § 5-5-41
(c) (3) (A) (providing that the petitioner must show that
“[e]vidence that potentially contains [DNA] was obtained
in relation to the crime[.]” (emphasis supplied). This is a
critical statutory distinction that the trial court’s
consideration of White’s motion failed to make.
Finally, the portions of the DNA statute analyzed by
the trial court require the petitioner to make only a
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threshold factual showing of the listed factors, namely
that the evidence to be tested is available and that it has
been subject to a chain of custody. The statute does not
permit the trial court to speculate as to the viability of any
DNA potentially located on the evidence in question. To
permit such speculation to factor into whether the
petitioner should be afforded the right to test the evidence
for DNA in the first instance violates the clear directive
of the General Assembly and, as a practical matter, would
likely exclude DNA testing of all but the most recently
and pristinely stored physical evidence. That violates
both the spirit and the letter of OCGA § 5-5-41 (c).
White v. State, 346 Ga. App. 448, 455-456 (2) (814 SE2d 447) (2018)
(alterations in original). See also Mincey v. State, 360 Ga. App. 219(860 SE2d 841) (2021) (applying White and holding that the trial
court erred in finding an insufficient chain of custody where
evidence had been held in police custody but where the mere
possibility of tampering could not be excluded).
Despite acknowledging this detailed, clear, and directly
applicable holding, the trial court’s order refused to follow it,
providing no reason other than a bare assertion that
the clear and unambiguous language of subsection
(c)(7)(B) is that Defendant must show “that the evidence
to be tested has been subject to a chain of custody
sufficient to establish that it has not been . . . altered in
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any material respect.”
Not only was this language in the trial court’s order proposed by
Senior Assistant Attorney General Graham, it also was later
actively defended by the State before this Court in its response to
Esposito’s application for discretionary appeal, which stated
unabashedly: “To the extent that White holds in contravention of
the plain language of the statute, it was not binding on the trial
court.”
Having previously asserted otherwise in the trial court and in
its response to Esposito’s application for discretionary appeal and
having previously ignored this Court’s clear direction to defend its
position in this appeal, the State now states in the substitute brief
that this Court ordered it to file: “After further analysis and review
of the issue, the State concedes it was in error and should not have
made this argument to the trial court.” This belated concession is
obviously correct. The Georgia Constitution states clearly: “The
decisions of the Court of Appeals insofar as not in conflict with those
of the Supreme Court shall bind all courts except the Supreme Court
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as precedents.” Ga. Const. of 1983, Art. VI, Sec. V., Par. III. We
hold that this provision in the Georgia Constitution plainly answers
the question presented for review in the negative and that trial
courts indeed must follow the precedents of the Georgia Court of
Appeals. Cf. Bauerband v. Jackson County, 278 Ga. 222, 224 (1)
(598 SE2d 444) (2004) (applying a similar principle of Ga. Const.
Art. VI, Sec. VI, Par. VI for the proposition that the decisions of our
Court, even if wrong, are “binding on the court below”). The State
should not have argued otherwise, and the trial court should not
have adopted such a patently frivolous argument.
3. Although the matter discussed above establishes precedent
explaining the very serious flaw in part of the trial court’s analysis
in one of its three alternative bases under OCGA § 5-5-41 (c) (7) for
denying Esposito’s extraordinary motion for a new trial and its
included motion for DNA testing, our review of Esposito’s
application reveals no apparent reversible error in the trial court’s
disposition of the other two alternative bases. Cf. Supreme Court
Rule 34 (1) (providing that an application for discretionary appeal
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will be granted where “[r]eversible error appears to exist”).
Accordingly, as there remains no basis for considering Esposito’s
appeal further, we vacate our prior order granting Esposito’s
application for discretionary appeal, we deny that application, and
we dismiss the pending appeal.
Prior judgment granting application vacated and application
denied in Case No. S22D1240. Appeal dismissed in Case No.
S23A0104. All the Justices concur, except Warren, J., not
participating, and Pinson, J., disqualified.
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