Stephen Alvelo was convicted of malice murder and other crimes arising out of the death of Walter Cooper. He appeals from the denial of his motion for new trial.1 Because we agree with Alvelo that the trial court applied an erroneous legal standard in his motion for new trial, we vacate the judgments of conviction and sentence and remand the case to the trial court. 1. The record reveals that Alvelo filed a timely motion for new trial in which he specifically asserted that the verdict was “against the weight of the evidence.” See OCGA § 5-5-21 the trial judge “may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding”. As the trial court expressly noted in its order, Alvelo urged the court to sit as the “thirteenth juror.” The trial court, however, then explicitly declined to consider the “credibility of witnesses,” stating that “it is solely within the purview of the jury to weigh conflicting evidence and judge credibility of witnesses. . . . The Court will not usurp the jury’s function . . . .”
In Ricketts v. Williams , 242 Ga. 303, 304 248 SE2d 673 1978, this Court held that the “discretionary decision of a trial court that the verdict is against the ‘weight of the evidence’ . . . is the same as Rule 33 of the Federal Rules of Criminal Procedure.” We then stated that the trial court on motion for new trial “may weigh the evidence and consider the credibility of witnesses . If the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. ‘It has been said that on such a motion the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.’ ” Cits. Emphasis supplied. Ricketts , supra at 304.
