Patel v. State

• Decision Date: 24 September 2007
• Docket Number: No. S07A0889.,S07A0889.
• Citation: 651 S.E.2d 55,282 Ga. 412
• Parties: PATEL v. The STATE.
• Court: Georgia Supreme Court

282 Ga. 412

651 S.E.2d 55

PATEL v. The STATE.

No. S07A0889.

Supreme Court of Georgia.

September 24, 2007.

Paul S. Liston, Fayetteville, for Appellant.

Scott L. Ballard, Dist. Atty., Randall K. Coggin Asst. Dist. Atty., Fayetteville, Cindy L. Spindler, Asst. Dist. Atty., Griffin, for Appellee.

HUNSTEIN, Presiding Justice.

Mahesh Patel was convicted on two counts of violating subsection (d)(1) of the Computer Pornography and Child Exploitation Prevention Act of 1999, OCGA § 16-12-100.2 (utilizing a computer on-line service to solicit a person believed to be a child to commit acts of sodomy) and one count of violating subsection (e)(1) of that statute (obscene Internet contact). The appeal is before this Court because of Patel's unsuccessful challenge to the constitutionality of the Act. However, we do not reach that issue¹ because we agree with Patel that the trial court's violation of OCGA § 17-8-57 (prohibiting a judge from expressing or suggesting an opinion regarding what has or has not been established) entitles Patel to a new trial.

1. The jury was authorized to find that appellant, while at his business in Cherokee County, used his computer to enter an adult chat room where he struck up a conversation with a participant who claimed to be a thirteen-year-old girl but who was actually 29-year-old Cpl. Heather Lackey of the Peachtree City Police Department. During their private chat using an Internet instant messaging service, Lackey repeatedly told appellant that she was thirteen years old; appellant acknowledged this information. Appellant nevertheless utilized computer on-line services in Fayette County to solicit from Lackey acts of fellatio and cunnilingus. During the course of their on-line contact he also transmitted messages containing sexually explicit photographs to Lackey in Fayette County.

The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of violating subsections (d)(1) and (e)(1) of OCGA § 16-12-100.2 as charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The transcript shows that the trial court, in response to opening statement by defense counsel, interrupted counsel and stated, "That's incorrect. That is not a defense to this case. Venue is proper in Fayette County or we wouldn't be here right now." Defense counsel, pursuant to the trial court's direction, completed opening. Then, after the jury was removed, counsel objected to the trial court's comments and moved for a mistrial.² The trial court denied the motion. After the jury returned from lunch recess, the trial court gave curative instructions that focused on counsel's claim that the court's comments had damaged his credibility. When counsel objected again, specifically regarding the impression the comments had made in the jurors' minds about venue being in Fayette County, the trial court gave a second set of curative instructions on that issue.³ The trial then continued.

OCGA § 17-8-57 provides:

It is error for any judge in any 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. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

It is well established that this statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial. Paul v. State, 272 Ga. 845, 537 S.E.2d 58 (2000); Allen v. State, 194 Ga. 178(2), 21 S.E.2d 73 (1942).

Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. Proof of venue is a part of the State's case, and the State's failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.

(Punctuation and footnotes omitted.) Jones v. State, 272 Ga. 900, 901-902(2), 537 S.E.2d 80 (2000). When the trial court in Patel's case stated before the jury that "[v]enue is proper in Fayette County," it improperly expressed its opinion as to what had been proved on a disputed issue of fact, see id. (venue is challenged whenever criminal defendant pleads not guilty to indictment's charges), notwithstanding the trial court's lack of intent to express an opinion on the evidentiary issue of venue. See Jones v. State, 189 Ga.App. 232(1), 375 S.E.2d 648 (1988) (fact that trial court did not intend to express its opinion on issue within sole province of jury does not excuse or mitigate violation of OCGA § 17-8-57).

The State asserts that reversal is not required. Contrary to the State's argument, the record on appeal sufficiently preserves this issue for our review.⁴ Nor can we agree with the State that the trial court's comment was the type of palpable "slip of the tongue" the appellate courts have excused from the strict mandate of OCGA § 17-8-57. Compare Sutton v. State, 263 Ga.App. 188(3), 587 S.E.2d 379 (2003); Atkins v. State, 253 Ga.App. 169(2)(b), 558 S.E.2d 755 (2002). We also reject the State's contention that the instructions the trial court subsequently gave the jury in an attempt to clarify its comments served to eradicate the violation. "[T]here can be no finding of harmless error" if the trial court violates this statutory prohibition at this point in the trial. Sauerwein v. State, 280 Ga. 438, 439(2), 629 S.E.2d 235 (2006). Thus, the law is well-established that instructions given to the jury by the trial court cannot cure a violation of OCGA § 17-8-57. Allen v. State, supra, 194 Ga. at 184(2), 21 S.E.2d 73; Alexander v. State, 114 Ga. 266(2), 40 S.E. 231 (1901); Crane v. State, 164 Ga.App. 638(1), 298 S.E.2d 619 (1982); Crawford v. State, 139 Ga.App. 347(2), 228 S.E.2d 371 (1976).⁵ We disapprove any language intimating the contrary. See, e.g., Banks v. State, 279 Ga.App. 57, 60(2), 630 S.E.2d 571 (2006) ("any perceived [violation of OCGA § 17-8-57] was adequately cured by the curative instruction"); Jordan v. State, 259 Ga.App. 551, 553, 578 S.E.2d 217 (2003) ("[t]o the extent [the trial court's comments] approached impropriety, the court's curative instructions dispelled any lingering intimations"); Chapman v. State, 217 Ga. App. 264, 265(2), 457 S.E.2d 206 (1995) (raising, but not reaching, "the issue of whether curative instructions given to the jury by the court can avoid the harsh mandate of a new trial contemplated by OCGA § 17-8-57" and cases cited therein as implying this result). It follows that no waiver of this issue occurred when defense counsel failed to renew the motion for mistrial after the giving of legally-ineffective instructions.

3. Appellant contends the trial court erred by charging the jury that "for the purposes of venue in this particular case, a violation of these crimes . . . shall have been committed in any county to which any use of a computer was made." Specifically, appellant challenges the limitation created by the phrase "to which," asserting that the charge improperly precluded the jury from considering the possibility that the crime was committed in Cherokee County "from which" the obscene images and sodomy solicitations were generated, rather than Fayette County, "to which" those images and solicitations were sent. The plain language of OCGA § 16-12-100.2(d)(1) and (e)(1) reflects that the offenses criminalized therein are capable of occurring in more than one county; hence, venue in appellant's case could legally have been laid in either Cherokee or Fayette County. See generally State v. Mayze, 280 Ga. 5, 6, 622 S.E.2d 836 (2005). The sole issue for the jury in regard to venue was whether the evidence established beyond a reasonable doubt that the charged crimes occurred in Fayette County. See generally Jones v. State, supra, 272 Ga. at 901(2), 537 S.E.2d 80. We thereby reject appellant's argument that the jury was authorized to acquit him of the charged crimes on the basis that the prosecution could also have been laid in Cherokee County. The charge was not error for the reason assigned.⁶

4. We do not address appellant's remaining enumerations, in which he asserts various errors in the phraseology used by in the trial court in its final jury instructions, as those matters are unlikely to recur upon retrial.

Judgment reversed.

All the Justices concur.

1. This Court will not decide constitutional issues if the case can be decided on other grounds. Livingston v. State, 266 Ga. 501, 504, fn. 1, 467 S.E.2d 886 (1996).

2. In Paul v. State, 272 Ga. 845, 537 S.E.2d 58 (2000), after recognizing that a trial court's violation of OCGA § 17-8-57 is waived by a defendant's failure to object or move for mistrial, id. at 848(2), 537 S.E.2d 58, we held that the plain error rule applies to "death penalty cases, and other criminal cases in which the trial court violates OCGA § 17-8-57." Id. at 849(3), 537 S.E.2d 58. Thus, any alleged violation of OCGA § 17-8-57 ...