In re Haney

355 Ga.App. 658

845 S.E.2d 380

IN RE HANEY

A20A0472

Court of Appeals of Georgia.

June 19, 2020

Miller & Key, J. Scott Key, Kayci N. Timmons; James L. Wright III ; Tucker & Browning Law, Alan D. Tucker, Adrienne B. Browning, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Thomas E. Buscemi, Assistant District Attorneys, for appellee.

Hodges, Judge.

Following a hearing, the Superior Court of Glynn County granted Gary Whittle's motion to withdraw his guilty plea based, in part, on a finding that Glynn County Police Lieutenant David Matthew Haney failed to disclose potentially impeaching evidence about a colleague who investigated Whittle. See Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).¹ Haney then moved to intervene in Whittle's prosecution to challenge the trial court's finding. The trial court determined that Haney lacked standing to intervene in a criminal case and denied Haney's motion, and Haney appeals. Even if such intervention is available, Haney has failed to demonstrate standing to intervene in a state criminal proceeding. Therefore, we affirm the trial court's judgment.

Under Georgia law, "a trial court's decision with respect to standing will not be reversed absent clear error, although we review de novo any questions of law inherent in that decision." (Citation and punctuation omitted.)

Callaway Blue Springs . West Basin Capital , 341 Ga. App. 535, 537 (1), 801 S.E.2d 325 (2017), superseded by statute on other grounds as stated in RES-GA McDonough v. Taylor English Duma , 302 Ga. 444, 448 (1), 807 S.E.2d 381 (2017) ; see also Buckler v. DeKalb County , 290 Ga. App. 190, 195 (2), 659 S.E.2d 398 (2008) ("[A] claim for permissive intervention addresses itself to the sound discretion of the court, and we will not reverse the court's decision absent abuse of discretion."). So viewed, the record shows that Whittle entered a guilty plea in the trial court to two counts of Sale of Schedule II Controlled Substance. Thereafter, Whittle learned that certain members of the Glynn Brunswick Narcotics Enforcement Team were under investigation by the GBI. Whittle filed a timely motion to withdraw his guilty plea, alleging that the failure to disclose the investigation, and the factual bases of the investigation, was both a Brady and a Giglio violation.

Following four separate evidentiary hearings, including testimony by Haney, the trial court granted Whittle's motion to withdraw his guilty plea. In its 25-page order, the trial court detailed Haney's knowledge, from as early as November 16, 2017, that the investigator in Whittle's case, Officer James Cassada, was engaging in a sexual relationship with a confidential informant and that Cassada had entered a substance abuse treatment facility in Jacksonville, Florida. Specifically, Haney's knowledge was the result of at least three text message exchanges with Cassada's wife, a telephone call from Cassada's wife notifying Haney of Cassada's relationship with the confidential informant, and a lunch meeting with Cassada.

The trial court found that, despite Haney's knowledge of Cassada's sexual relationship with the confidential informant, "[n]o written record, no inquiry, no internal affairs investigation, and no action resulted from any of these reports...."² Similarly, although Haney knew Cassada "had gone to treatment for what [he was] told was an alcohol problem[,] ... this information was not documented and not disclosed upon Officer Cassada's return...." Accordingly, the trial court concluded that information concerning Cassada's relationship with the confidential informant had been suppressed and that Cassada's "two month stay in a substance abuse treatment facility is exculpatory information under Brady ...." In addition, the trial court determined that the failure to disclose these facts, known to Haney and therefore attributed to the State, constituted "[i]mpeaching information within the meaning of Giglio ...."³ Accordingly, the trial court granted Whittle's motion to withdraw his guilty plea.

In response to the trial court's order, Haney filed a motion to intervene in which he asked for a hearing, with notice and an opportunity to be heard, and that the trial court "[r]econsider and reverse the Giglio finding...."⁴ Following a hearing on Haney's motion, the trial court summarily found that Haney lacked standing to intervene and denied the motion. At the conclusion of the hearing, and after the trial court announced its ruling, Haney's counsel indicated that he understood the trial court's ruling "because I understand what Georgia law is and the argument that we don't have a vehicle. We need to have a vehicle." This appeal followed.

In a single enumeration of error, Haney contends that the trial court erred in denying his motion to intervene or in providing him "a hearing to challenge the court's findings regarding his conduct under Giglio ." See Garrity v. New Jersey , 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (recognizing law enforcement officer's right to remain silent during an investigation by other state law enforcement agencies). We disagree and, for the following reasons, affirm the trial court's judgment.

At the outset, neither party has addressed squarely the fundamental question of standing, upon which the trial court based its order.⁵ "The constitutional and procedural concept of standing falls under the broad rubric of jurisdiction in the general sense, and in any event, a plaintiff with standing is a prerequisite for the existence of subject matter jurisdiction." (Punctuation omitted.) Blackmon v. Tenet Healthsystem Spalding , 284 Ga. 369, 371, 667 S.E.2d 348 (2008). Indeed, "standing is a threshold issue." (Emphasis in original.) Rondowsky v. Beard , 352 Ga. App. 334, 340 (1) (b), 835 S.E.2d 28 (2019) ; see also, e.g., State v. Alford , 347 Ga. App. 208, 211 (1), 818 S.E.2d 668 (2018) ("[D]emonstrating standing is a threshold burden for suppression of the evidence.") (citation and punctuation omitted). To have standing, a party seeking relief must show: (1) he has suffered "an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) a causal connection between the injury and the challenged wrong; and (3) "it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." (Citation and punctuation omitted.) Center for a Sustainable Coast v. Turner , 324 Ga. App. 762, 764, 751 S.E.2d 555 (2013) ; see also Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-561 (II), 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Granite State Outdoor Advertising v. City of Roswell , 283 Ga. 417, 418 (1), 658 S.E.2d 587 (2008).

Even assuming Georgia law recognized a right to intervene in a state criminal proceeding by a law enforcement officer impacted by a Giglio ruling, we conclude that Haney lacks standing to intervene because he has not demonstrated that he has suffered a concrete and particularized injury as a result of the trial court's Giglio finding. Haney does not allege that he has lost his current job, that the circumstances of his current job have changed for the worse, that his employment has been threatened, that he has been denied other employment, or that his prospects for other employment have diminished as a result of the trial court's finding in Whittle's case. In fact, Haney stated that he had been an officer with the Glynn County Police Department since 2006 and that he intended "to complete [his] career there[,]" further indicating that he was not actively seeking other employment due to any change in his employment. Instead, Haney offers generic, speculative statements that the trial court's order constituted a " ‘death order’ to [his] career" and that the order "will have an adverse impact on [his] job, career and certification." These statements fall well short of what is required to establish standing. See generally Sustainable Coast , 324 Ga. App. at 764, 751 S.E.2d 555 ; compare Byrne v. Clinton , 410 F.Supp.3d 109, 118 (III) (A) (1) (D. D.C. 2019) (finding that " ‘conjectural or hypothetical’ allegations of [reputational] injury are insufficient to establish standing") (citation omitted); NRDC, Inc. v. Wheeler , 367 F.Supp.3d 219, 231 (III) (B) (S.D. N.Y. 2019) (recognizing that "an injury to reputation will satisfy the injury element of standing [and that] such an injury must be ‘concrete and particularized’ ...