By Alyson M. Palmer, From Daily Report

A 4-3 decision by the Georgia Supreme Court to grant a new trial to a murder defendant prompted a dissenting justice to call on the Legislature to change a statute governing trial judges’ comments in criminal cases.

Steven Rouse, serving a life sentence for a felony murder conviction, will receive a new trial because the judge who presided over the matter told prospective jurors that the case at issue “happened in Muscogee County.” Because the county in which a crime took place is something that prosecutors have to prove at trial, Chief Justice Hugh Thompson wrote for the majority in a decision issued Monday that the remark violated a state statute that says a new trial is warranted if a trial judge expresses to a jury his or her opinion as to what’s been proven.

Joined by two other justices, Justice David Nahmias wrote in dissent that the rule hadn’t been violated because, viewed in context, the trial judge’s remark didn’t amount to an expression of an opinion on whether venue had been proven. Moreover, he said, if the court is going to consider such a remark to be a violation of the statute, the Legislature should repeal the part of the statute that requires a new trial regardless of whether the defendant had objected to or been hurt by the judge’s remark.

“Other than ‘this is how we have always done it’—and actually we have not always done it this way—I see no good arguments for reversing convictions in every single case where a judge violated § 17-8-57, even where—as in this case—the violation undoubtedly caused no harm to the defendant,” Nahmias wrote.

According to Thompson’s majority opinion, evidence presented at trial showed that in 2006 Rouse beat Scott Gillens to death after Gillens sent the girlfriends of Rouse and another man sexual text messages. Rouse admitted to police that he hit and kicked Gillens but claimed he did so in self defense, according to Thompson’s opinion. After a 2007 trial, Rouse was found guilty of felony murder and robbery.

Rouse appealed based on remarks made by Chattahoochee Circuit Superior Court Judge Bobby Peters during his preliminary instructions to potential jurors. In explaining the nature of jury selection, Peters said, “You will be hearing about a case, which is a murder case, that happened in Muscogee County, and you’ll be asked questions about this case.”

Rouse’s appellate lawyers from the Georgia Public Defender Standards Council argued that Peters’ saying the case “happened in Muscogee County” violated O.C.G.A. § 17-8-57. That statute deems it an automatically reversible error for a judge hearing a criminal case, “during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Thompson and justices Robert Benham, Carol Hunstein and Harold Melton formed a majority to grant Rouse a new trial on that basis.

Thompson emphasized that venue was a “critical” element of a prosecutor’s case and the language of § 17-8-57 requires a new trial when it is violated—regardless of whether a defendant has been hurt by the judge’s comment. Thompson likened the case to a 2007 high court decision, Patel v. State, that found a violation when a trial judge interrupted a defense lawyer’s opening statement to say “venue is proper in Fayette County or we wouldn’t be here.” Thompson also relied on a 2010 high court decision, State v. Anderson, that said a trial judge violated the statute when he questioned a witness as to the location of the crime, then commented, “I just wanted to make sure.”

Thompson rejected the state’s arguments that the trial judge’s comment was a “slip of the tongue,” was needed “to orient the venire to the time and place the crime was alleged to have occurred,” or was a mere comment on the evidence jurors could expect to hear. Thompson wrote that the judge’s remark was not made in the context of the trial judge’s explanation of the allegations in the indictment or the state’s burden of proof.

Thompson also rejected Nahmias’ suggestion that the trial judge’s subsequent instruction to jurors that anything he said was not evidence indicated jurors would not have interpreted Peters’ earlier comment as an opinion on whether venue had been proven. “The rule in Georgia remains that any violation of § 17-8-57 is subject to the super-plain-error standard of review,” wrote Thompson, “and no amount of additional instructions can cure the presumed, inherent prejudice caused by a violation of the statute.”

Joined by Presiding Justice P. Harris Hines and Justice Keith Blackwell, Nahmias said in a 39-page dissent that the court had gone well beyond its decisions in Patel and Anderson and embraced a “novel and unwarranted expansion” of the statute.

“Never before has this court reversed a conviction based on a trial judge’s comment of this sort—an isolated remark made while outlining for prospective jurors what sort of ‘case’ they would be ‘hearing about’; said during the most preliminary of instructions to the prospective jurors, before voir dire questioning had even begun; accompanied shortly thereafter and followed repeatedly by explicit instructions to the jurors to decide the case based only on the evidence presented during trial and not to treat anything the court says as such evidence; never objected to by defense counsel during trial or by Rouse’s new appellate counsel on motion for new trial; and concerning an issue—venue—that the state proved without any dispute at trial and that remains entirely uncontested on appeal,” Nahmias wrote.

He continued that, if a comment such as Peters’ is considered an error under § 17-8-57, the Legislature should seriously consider repealing the part of the statute that mandates a new trial any time it is violated. “After all,” he said, “we do not automatically reverse convictions when a trial court violates innumerable other important statutory policies, such as the rules of evidence, or even when a trial court violates constitutional requirements; such errors are almost always subject to harmless-error review.”

Michael Tarleton of the standards council’s appellate division, who made the winning Supreme Court argument for the defendant, said that those who disagree with the court’s decision should turn to the Legislature. But he took issue with Nahmias’ assessment that a change is called for, saying the “strongest possible sanction” is needed to discourage comments on the evidence by trial judges. “I think the best way to prevent that is for the judges to know that if they make that mistake then the case is going to be sent back for a new trial,” he said.

Assistant Attorney General Christian Fuller argued at the Supreme Court for the state. Asked for comment, a spokeswoman for Attorney General Sam Olens said the office would defer to the district attorney’s office, which did not respond to inquiries.

The case is Rouse v. State, No. S14A1165.
IMAGE: Chief Justice Hugh Thompson and Justice David Nahmias Chief Justice Hugh Thompson and Justice David Nahmias
For more on this story go to: http://www.dailyreportonline.com/id=1202676799976/43-Reversal-of-Murder-Conviction-Prompts-Justices-Call-for-Legislative-Action#ixzz3JWP9GaOe