Roberts v. State

309 Ga. 639

847 S.E.2d 541

ROBERTS

v.The STATE.

S20A0988

Supreme Court of Georgia.

Decided: August 24, 2020

Stephen R. Scarborough, Meghan B. Callier, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

WARREN, Justice.

Appellant Deanna Roberts pled guilty in federal court to a crime relating to the theft of a medical product, liquid silicone, that Roberts injected into the buttocks of Lateasha Hall, resulting in Hall's death. When she was later indicted in the Superior Court of Fulton County for state crimes arising from Hall's death, including malice murder, Roberts filed a plea of statutory double jeopardy in superior court, contending that under OCGA § 16-1-8 (c), her conviction in federal court barred the state prosecution for all crimes except malice murder. The trial court rejected that claim, and Roberts filed this direct appeal. Because one of the statutory requirements for the OCGA § 16-1-8 (c) bar to apply is not satisfied here, we affirm the trial court's denial of Roberts's plea in bar.

1. To begin, we address a jurisdictional issue that this Court has not squarely addressed before: whether the denial of a statutory double jeopardy claim against successive prosecution under OCGA § 16-1-8 (c) is appealable under the collateral order doctrine. We conclude that it is.

The trial court order denying Robert's plea in bar is not obviously a final judgment that would be directly appealable under OCGA § 5-6-34 (a) (1) insofar as that order did not terminate the entire case in the trial court. See Rivera v. Washington , 298 Ga. 770, 773-774, 784 S.E.2d 775 (2016). However, the collateral order doctrine

recognizes that a very small class of interlocutory rulings are effectively final in that they finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Id. at 774, 784 S.E.2d 775 (citation and punctuation omitted). "Thus, an order that satisfies the requirements of the collateral order doctrine ... would be appealable because it comes within the terms of [the] relevant statutory right to appeal final judgments." Id. (citation and punctuation omitted).

It is well established that the denial of a constitutional double jeopardy claim is appealable under the collateral order doctrine. See Patterson v. State , 248 Ga. 875, 287 S.E.2d 7 (1982). In Patterson , we explained in detail the reasoning for that rule. See id. at 876-877, 287 S.E.2d 7. But with regard to statutory double jeopardy claims like the one presented here, we have no cases fully addressing the issue. For example, in Torres v. State , 270 Ga. 79, 508 S.E.2d 171 (1998), we noted that Torres was bringing "a pre-trial direct appeal" of a plea of former jeopardy based on OCGA § 16-1-8 (c), and we then cited Patterson with no mention of the collateral order doctrine and no analysis of why a statutory double jeopardy claim under OCGA § 16-1-8 (c) was directly appealable under that doctrine.¹ See Torres , 270 Ga. at 79, 508 S.E.2d 171. Similarly, the Court of Appeals has summarily held that the denial of a statutory double jeopardy claim is directly appealable. See Sellers v. State , 332 Ga. App. 14, 14-15, n.1, 770 S.E.2d 31 (2015) (not mentioning the collateral order doctrine, but citing Malloy v. State , 293 Ga. 350, 352, 744 S.E.2d 778 (2013), a constitutional double jeopardy case in which we said that the defendant had a right to direct appeal under Patterson ); McCannon v. State , 168 Ga. App. 471, 471, 309 S.E.2d 636 (1983) (not mentioning the collateral order doctrine, but citing Patterson ).²

We now explain why the denial of a timely plea in bar based on a statutory double jeopardy claim is appealable under the collateral order doctrine. In reaching that conclusion, we look to our precedent in Patterson , 248 Ga. 875, 287 S.E.2d 7, where we relied on the reasoning of Abney v. United States , 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), to explain that the denial of a constitutional double jeopardy claim was appealable under the collateral order doctrine because " ‘there can be no doubt that such orders constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim’ "; because " ‘the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue of the accused's impending criminal trial’ "; and because " ‘the rights conferred on a criminal accused by the Double Jeopardy clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence.’ " Patterson , 248 Ga. at 876, 287 S.E.2d 7 (quoting Abney , 431 U.S. at 659-660, 97 S.Ct. 2034 ). With regard to the latter consideration, we reiterated that the Double Jeopardy Clause "is a guarantee against being twice put to trial for the same offense" and that this protection

"would be lost if the accused were forced to ‘run the gauntlet’ a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit.... [If] a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs."

Patterson , 248 Ga. at 876, 287 S.E.2d 7 (quoting Abney , 431 U.S. at 662, 97 S.Ct. 2034 ; emphasis omitted).

So too with a claim of statutory double jeopardy. Like in Patterson and Abney , Roberts has asserted a claim seeking protection from successive prosecution, though based on OCGA § 16-1-8 (c) and not the Georgia or United States Constitutions. See Calloway v. State , 303 Ga. 48, 52, 810 S.E.2d 105 (2018) (explaining that OCGA § 16-1-8 (c) imposes "a statutory limitation to some successive prosecutions"). We thus conclude that the same considerations that led us to hold in Patterson that the denial of a constitutional double jeopardy claim is directly appealable under the collateral order doctrine also apply here. See Carman v. State , 304 Ga. 21, 25, 815 S.E.2d 860 (2018) (explaining that we generally treat this State's statutory double jeopardy claims "in a manner consistent with case law from the United States Supreme Court regarding the Fifth Amendment"). Accordingly, we conclude that the denial of Roberts's statutory double jeopardy claim against successive prosecution under OCGA § 16-1-8 (c) is directly appealable under the collateral order doctrine.³

2. We turn now to the specifics of Roberts's claim that OCGA § 16-1-8 (c) bars her prosecution for state crimes arising from Hall's death, because she has already been convicted of a federal offense in federal court for a crime arising from the same conduct.⁴

On May 11, 2016, the federal government indicted Roberts for eight offenses relating to her use of liquid silicone, including two offenses relating to her injection of liquid silicone into Hall. Only one of the offenses relating to Hall is relevant here. That offense, to which Roberts pled guilty in federal court on June 1, 2017, was for violating 18 USC § 670 ("Theft of medical products"). With regard to that offense, the federal indictment alleged that Roberts,

in and using a means and facility of interstate commerce, did knowingly possess and transport a pre-retail medical product, that is, liquid silicone, that was involved in a violation of Title 18, United States Code, Section 670 (a) (1), that is, the defendant in and using a means and facility of interstate commerce, did by fraud and deception obtain liquid silicone which the defendant injected into the buttocks of L.H., and said violation did result in the death of L.H., in that the death of L.H. resulted from the use of the liquid silicone obtained by the defendant by means of fraud and deception, in violation of Title 18, United States Code, Sections 670 (a) (3), (b) (2) (C), and (c) (1).⁵

Then, on August 8, 2017, Roberts was indicted by a Fulton County grand jury for five state crimes stemming from her injection of liquid silicone into the buttocks of Hall, an act that is alleged to have caused Hall's death when the liquid silicone traveled to Hall's lungs, rendering them useless. The state indictment charged Roberts with malice murder, felony murder predicated on aggravated battery, felony murder predicated on practicing medicine without a license, practicing medicine without a license, and aggravated battery.

In October 2019, Roberts filed a statutory double jeopardy claim, contending that, because she had been convicted of violating 18 USC § 670 in federal court, her state prosecution was barred by OCGA § 16-1-8 (c) for all crimes alleged in the Fulton County indictment except for malice murder. The trial court denied that claim, and Roberts contends on appeal that it erred in doing so.

OCGA § 16-1-8 (c) bars successive prosecutions

if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.

This Court has explained that three factors must be satisfied for OCGA § 16-1-8 (c) to bar a state prosecution. See Calloway , 303 Ga. at 52, ...