Hargis v. State

• Decision Date: 29 November 2012
• Docket Number: No. A12A1622.,A12A1622.
• Citation: 735 S.E.2d 91,319 Ga.App. 432
• Parties: HARGIS v. The STATE.
• Court: Georgia Court of Appeals

319 Ga.App. 432

735 S.E.2d 91

HARGIS

v.The STATE.

No. A12A1622.

Court of Appeals of Georgia.

Nov. 29, 2012.

Reconsideration Denied Dec. 14, 2012.

Nathanael Adamson Horsley, Dawsonville, for Appellant.

William Jeffrey Langley, Dist. Atty., Cathy Ann Cox-Brakefield, Asst. Dist. Atty., for Appellee.

BRANCH, Judge.

On appeal from his conviction for attempt to manufacture methamphetamine, possession of ephedrine and pseudoephedrine, and other crimes, Anthony Hargis argues that the trial court erred when it denied his motion to suppress evidence seized pursuant to his July 2009 arrest after he failed to appear at trial originally scheduled for February 2009 and when it did not recuse itself after receiving an ex parte communication before trial from a co-defendant's counsel about Hargis's alleged propensity for violence. Because the trial court erred when it failed to recuse itself from the case after receiving the ex parte communication, we reverse Hargis's conviction and order a new trial. Taking up the matter because it is likely to recur on retrial,¹ we also conclude that the trial court erred when it denied Hargis's motion to suppress the evidence seized in July 2009.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation omitted.) Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that in June 2006, after reviewing records concerning Hargis's transactions on eBay between September 2003 and March 2006, including the purchase of a number of items used in methamphetamine manufacture, a drug enforcement agent obtained a warrant to search the house where Hargis lived with co-defendant Karen Taylor. The agent found Hargis working in an outbuilding outfitted with equipment used in methamphetamine manufacture, a ventilation shaft, and a surveillance camera. Taylor arrived during the search, and both were arrested. An agent recovered a handgun from a bedroom in the house. Other evidence seized included shipping labels addressed to Hargis, a box of false identification cards with his picture on each card, over-the-counter tablets containing ephedrine and pseudoephedrine, and liquids that tested positive for the two substances. Agents also found written directions to a number of pharmacies in Taylor's handwriting. In September 2006, Hargis was charged with attempt and conspiracy to manufacture methamphetamine, possession of ephedrine and pseudoephedrine, possession of false identification, and second-degree forgery.

When Hargis did not appear at a scheduled trial in February 2009, a bench warrant was issued for his arrest. After receiving an anonymous tip in July 2009 that Hargis was at his house, officers went to the house one afternoon and saw a beige truck matching the neighbors' description of Hargis's vehicle appear in the driveway and then speed away. An officer soon saw the truck parked at a convenience store, unoccupied but with its headlights on. When the officer saw a man walk up and get into the driver's seat of the truck, he pulled up to the truck and activated his blue lights. The officer told the man that a be on the lookout had issued on the truck and that its owner was wanted on an arrest warrant. The officer then asked the man for his driver's license. When the man fumbled with his wallet, the officer saw two forms of identification inside it. When the man said that he did not have a license and did not have to give his name, the officer asked him to step out of the truck. When the man did so, the officer began to handcuff him "for [the officer's] safety" and until the officer "could identify who [Hargis] actually was." Hargis resisted and cursed the officer, but other officers arriving on the scene helped to subdue him.

With Hargis now under arrest for obstruction, the officer picked up Hargis's wallet (which he had left on the driver's seat of the truck), opened it, and saw two identification cards with the same picture but different names. After the first officer gave a second officer one of the false IDs, the second officer looked into the truck and saw two drugstore bags lying in the passenger's side front seat. The second officer opened the truck door, retrieved and opened the bags, and found items containing ephedrine, lighter fluid, brake cleaner, and 17 identification cards bearing Hargis's photograph.

Based on the evidence obtained from Hargis's truck, officers obtained a search warrant for Hargis's house and found boxes containing devices for manufacturing and smoking methamphetamine, one of which contained the drug. A tape recorder and cassette tape were also seized. Conversations on the tape included Hargis instructing Taylor on the use of the recorder, Taylor's conversations with her counsel, and their negotiations with prosecutors assigned to the case.

One month later, at a pretrial hearing² on the 2006 charges including attempt and conspiracy to manufacture methamphetamine, the trial court ruled that evidence of the events incident to Hargis's July 2009 arrest were admissible as a similar transaction. Later in the same hearing, Hargis moved to suppress the evidence seized in July 2009 as the product of an illegal search. The trial court denied the motion.

On the first day of Hargis's trial on the 2006 charges, held in late September and early October 2009, and in addition to the evidence directly supporting those charges, the State moved to admit evidence of Hargis's failure to appear at the February 2009 trial as indicating consciousness of guilt as well as the tape seized in July 2009 for the purpose of showing the existence of a conspiracy between Taylor and Hargis. The court ruled the tape admissible for the limited purpose of showing the existence of a conspiracy. After a jury found Hargis guilty on all counts, the State introduced evidence for sentencing purposes of two 1997 felony convictions from Arizona, including one for attempted possession of methamphetamine manufacturing equipment. Hargis was convicted and sentenced as a recidivist to two consecutive life terms plus 20 years.

On June 3, 2011, Hargis's appellate counsel³ filed an amended motion for new trial arguing, inter alia, that the trial court erred when it sentenced Hargis⁴ and when it failed to recuse itself after receiving an ex parte communication from Taylor's counsel. During the hearing on the motion, held the same day, the prosecutor testified that at some point before trial, Taylor's counsel had entered chambers and, outside the presence of Hargis's counsel, had talked to the judge about the tape discovered in the July 2009 search.⁵ Hargis's trial counsel testified that at the time of this communication between Taylor's counsel and the judge, he knew that Taylor's counsel had met with the judge on the subject of the tape but did not know that Taylor's counsel had expressed "concerns" about Hargis until after trial. Hargis's trial counsel did not object or move to recuse the judge on the basis of this meeting. Under examination by Hargis's appellate counsel, Taylor's counsel confirmed that she had spoken to the judge outside the presence of either Hargis or his trial counsel about her "concerns," including "personal safety issues and things of that nature." The testimony continues:

Q. And when you say "concerned about safety issues," what do you mean?

A. I considered Mr. Hargis to be somewhat—I've always been very leery about Mr. Hargis, danger kind of things, you know, just always somebody that I would probably watch my back with.

Q. And that was something you communicated to the judge, is that correct?

A. Can't recall the specifics of the conversation, but I do recall that being a concern.... I just remember being concerned about the contents of the tape, what I might have said on the tape, what Ms. Taylor might have said on the tape, what Mr. Hargis might have heard on the tape and, you know, if that were to be played in open court or if Mr. Hargis were to hear it or something like that, there were some personal safety issues that I was concerned about.

Q. And just to specify, when you say you were concerned about it, was that concern something you voiced with the judge? ...

A. I believe I did. I can't quote that a hundred percent, but I believe I did.

The State concedes that neither Hargis nor his trial counsel was present for this ex parte communication, and there is no evidence that Hargis learned of its contents before or during trial.

Eight months after the hearing on the amended motion, the trial court denied the remainder of Hargis's motion for new trial. Neither at the hearing on the motion nor in its order denying it did the trial court dispute any part of Taylor's counsel's account of the ex parte communication.

1. As a preliminary matter, we note that although Hargis asserts that the trial court erred when it denied his motion to suppress the evidence seized from his truck and house during the July 2009 search, he does not dispute the sufficiency of the remaining evidence against him. Reserving the merits of Hargis's motion to suppress for Division 3 below, we conclude that the evidence seized during the 2006 search of Hargis's residence was sufficient to sustain his conviction for the charges against him, all of which date from 2006. See OCGA §§ 16–13–33 (defining attempt to violate the controlled substances laws, punishable by "imprisonment not exceeding the maximum punishment prescribed for the offense"); 16–13–30.3(b)(1) (defining possession of ephedrine and pseudoephedrine); 16–9–4(b)(1...