Beasley v. State
| Decision Date | 09 July 2014 |
| Docket Number | No. A14A0636.,A14A0636. |
| Citation | 328 Ga.App. 96,761 S.E.2d 509 |
| Parties | BEASLEY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Cheryl Joyce Braziel, Mableton, Loletha Denise Hale, for Appellant.
Timothy Michael Marlow, Peter J. Skandalakis, for Appellee.
Following a trial by jury, Robert Beasley was convicted of trafficking cocaine.1 On appeal, Beasley contends that (1) the evidence is insufficient to sustain his conviction; (2) the trial court erred in denying his motion to suppress evidence; (3) the court admitted impermissible testimony; (4) the court erroneously sentenced him as a recidivist; and (5) his right to due process was violated when the trial judge failed to disclose and/or disqualify himself for an apparent conflict of interest. Because we cannot discern from the current record whether the fifth enumeration of error has been preserved for appellate review, and because the resolution of this enumeration may ultimately moot the other alleged errors, we vacate the trial court's denial of Beasley's motion for new trial and remand for findings of fact consistent with this opinion.
As explained more fully in Case Number A14A0337, Beasley was convicted of trafficking cocaine after drugs were discovered in a hotel room that he shared with his girlfriend, Kayla Stewart, on December 24, 2011. The Honorable Jack Kirby presided over the trial conducted in the Superior Court of Coweta County, and Judge Kirby is married to the chief assistant district attorney in the Coweta Judicial Circuit District Attorney's Office. Beasley contends that he was unaware of this fact prior to trial and that he should be granted a new trial as a result of the trial judge's failure to disclose this information. But the trial court summarily denied Beasley's motion for new trial, and, for the reasons set forth infra, we cannot glean from the record before us whether this enumeration of error was properly preserved for appellate review. As such, we vacate the trial court's order denying Beasley's motion for new trial and remand for further proceedings consistent with this opinion.
As previously noted, it is undisputed by the State that Judge Kirby is married to the chief assistant district attorney in the relevant circuit and, in fact, that he has since recused himself from handling all criminal cases following the Judicial Qualifications Commission's (JQC) issuance of an opinion on the matter. Specifically, the JQC determined that because Judge Kirby is married to the chief assistant district attorney in his judicial circuit, he “has a direct financial interest in his spouse's employment,” and that his spouse's “supervisory authority in the district attorney's office” requires recusal. 2
In reaching the foregoing determination, the JQC relied heavily on Canon 3 of the Code of Judicial Conduct, noting that this canon “requires judges to disqualify themselves in all criminal proceedings in a circuit where the judge presides if the judge's spouse serves in a supervisory or managerial role in the Office of the District Attorney,” and emphasizing that “given the ongoing nature of the conflict and the strong public interest in the appearance of strict impartiality in criminal cases, ... remittal of disqualification is not permitted because of the appearance of bias concerning a party or the lawyers in the proceeding.” 3
In considering the matter before us, we are cognizant that this situation is factually similar to that at issue in our Supreme Court's opinion in Stephens v. Stephens,4 in which that Court held that a judge should have been disqualified when his son was employed at the law firm of an attorney participating in a case before him.5 And in so holding, the Supreme Court noted that the JQC had previously issued an opinion expressing that a judge should recuse himself in such a situation.6 However, in the case sub judice, we cannot yet determine from the record before us whether the trial court erred in denying the motion for new trial on this asserted ground.
The record reflects that Beasley was convicted on November 9, 2012, and his first motion for new trial was filed on November 28, 2012. On December 19, 2012, Judge Kirby issued a rule nisi scheduling a hearing on Beasley's motion for new trial for February 14, 2013. Thereafter, on January 24, 2013, Beasley's attorney filed a motion to withdraw as counsel, which was denied by Judge Kirby on February 1, 2013. The order of denial indicated that the motion hearing would still be held on February 14, 2013.
On February 8, 2013, Beasley sought a continuance of the motion hearing, indicating financial difficulties in procuring the trial transcript and in formally retaining his counsel to pursue post-trial relief. On April 4, 2013, Judge William Hamrick issued a writ of habeas corpus ad prosequendum, scheduling a hearing on the motion for new trial for May 9, 2013. Judge Hamrick then issued a second writ of this nature on July 2, 2013, scheduling a hearing on the motion for new trial for July 18, 2013. Finally, Judge Hamrick issued a third such writ on July 18, 2013, scheduling a hearing on the motion for new trial for August 16, 2013.
Beasley filed a brief in support of his motion for new trial on August 16, 2013. In the brief and at the hearing, Beasley argued that he was deprived of a fair trial due to a conflict of interest created by Judge Kirby's marriage to a member of the district attorney's office in the same judicial circuit. Beasley's counsel contended that neither she nor her client was aware of this relationship prior to trial and that both had learned of the conflict only afterwards.7 However, nothing in the record establishes when exactly Beasley and his counsel learned of the apparent conflict of interest.
In the recent decision of State v. Hargis,8 our Supreme Court held that the issue of recusal was not properly preserved for appellate review when the defendant first raised it in a motion for new trial but did not also seek disqualification of the trial judge to hear the motion for new trial.9 But the Supreme Court also made clear the limitations of its holding in Hargis, noting:
We decide today that raising a disqualification issue in a motion for new trial is not sufficient to preserve the issue, at least so long as the same judge—the one allegedly disqualified—is hearing the motion for new trial. If, by the time the grounds for disqualification are known, the allegedly disqualified judge no longer is presiding over the case, we suppose that it might be sufficient to raise the issue in a motion for new trial, inasmuch as a motion to recuse would serve no purpose in such a case. But this is not such a case.10
And here, Beasley never filed a motion for Judge Kirby to recuse himself, instead raising the...
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Beasley v. State
...prior to trial and that both had learned of the conflict only afterward.8 Judge Hamrick denied Beasley's motion, giving rise to Beasley I. Because the record in that case did not reflect when Beasley learned of the grounds for disqualification of Judge Kirby,9 this Court ruled that it could......
- Harvey v. State