The State has filed a timely direct appeal from the trial court’s grant of new trials to appellees Christopher James and Herman Lawson, co-indictees who were convicted in 2008 of malice murder in separate jury trials in the Superior Court of Fulton County. See OCGA § 5-7-1a7. After conducting a de novo review of the trial court’s ruling, we conclude the trial court erred and reverse the trial court’s order granting new trials to James and Lawson.
Appellees James and Lawson and two other men were charged in an indictment with the August 2005 murders of Jeremiah Ingram and Fatima Fisher. James and Lawson were convicted of murder in separate trials; another co-defendant was acquitted in a trial that took place after the trials of appellees; and the fourth co-indictee pled guilty to a charge of voluntary manslaughter. Both appellees filed timely motions for new trial and after conducting a hearing on appellee James’s motion, the trial court issued an order in September 2011 that granted new trials to both appellees. The trial court based its grant of new trials on the unavailability at appellees’ trials of a piece of evidence that was available at the trial of the co-indictee who was acquitted. The evidence at issue is the second page of the three-page investigative summary compiled by the Office of the Fulton County Medical Examiner.1 The trial court called the missing page a “critical piece of evidence” and ruled that new trials were required. The trial court reasoned that, without the missing page, appellees were denied the ability to better fix the time of death, an important factor in the trials, and were unable to stress in their closing arguments and during their cross-examination of the only eyewitness who testified, that the deaths occurred anywhere from 30 to 90 minutes prior to the discovery of the bodies.2 Although the trial court’s order does not cite Brady v. Maryland, 373 U.S. 83 83 SC 1194, 10 LE2d 215 1963, based on our review of the amended motions for new trial and the transcript of the hearing on James’s motion for new trial, we conclude that the trial court granted the motion on a special ground: that appellees’ lack of access to the missing page was a Brady violation.
