Serdula v. State
| Decision Date | 18 June 2020 |
| Docket Number | A20A0258 |
| Citation | 845 S.E.2d 362,356 Ga.App. 94 |
| Parties | SERDULA v. The STATE. |
| Court | Georgia Court of Appeals |
The Merchant Law Firm, Ashleigh B. Merchant, John B. Merchant III, for appellant.
Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.
Following a bench trial, Paul Serdula appeals his convictions for nineteen counts of unlawful surveillance, eleven counts of aggravated sodomy, two counts of sexual assault against a person in custody, one count of child molestation, and one count of aggravated child molestation. Specifically, Serdula argues that the trial court erred in (1) denying his motion to recuse the trial judge; (2) entering the State's proposed order as to the recusal motion without giving him an opportunity to respond; and (3) denying his motion to suppress certain evidence. Serdula also challenges the sufficiency of the evidence to support his aggravated-sodomy convictions and argues that his trial counsel was ineffective for failing to present a defense that he suffered from a delusional compulsion, rendering him incompetent to stand trial.1 For the reasons set forth infra , we affirm.
Viewing the evidence in the light most favorable to the trial court's verdict,2 the record shows that on November 18, 2009, Kim Nimmons, a dental hygienist, noticed a device of some kind concealed in pipe covering under a sink in the employee's bathroom where she worked. The dental office reported Nimmons's discovery to police, and Officer A. K. Stallings responded to the scene, where he observed what appeared to be "[a] camera secreted under the [bathroom] sink." Detective Christopher Twiggs also responded to the scene, and ultimately, determined that the hidden device was a black Verizon LG cell phone positioned in a manner to record the toilet and cabinet areas of the bathroom.
While Stallings and Twiggs were photographing the scene, Serdula appeared in the bathroom doorway and said, "that's my camera." In response, Stallings and Twiggs asked Serdula if he would speak to them about the incident, and he agreed to do so. And during the interview, Serdula told the officers that he placed his cell phone in the bathroom that morning because he believed "someone was stealing drugs from the facility and using the bathroom to hide the drugs on their person." Serdula claimed that he notified the dental office's management of his suspicions, but the office manager and the accounting manager later informed Twiggs that Serdula never made such a report to them. Following the interview, Serdula was arrested for unlawful surveillance.
On November 19, 2009, Twiggs obtained a search warrant for Serdula's residence, car, and cell phone. Then, later that day, another detective analyzed the phone's memory card and confirmed that Serdula recorded two of the dentist office's female employees using the toilet in the employee bathroom. And through the investigation that followed, police detectives discovered that Serdula was a nurse-anesthetist who recorded, molested, and sodomized nineteen female patients—two of whom were under the age of 16—while they were unconscious and awaiting medical procedures at a hospital or other medical office.3
Subsequently, on February 19, 2010, Serdula was charged with fifteen counts of unlawful surveillance, nine counts of aggravated sodomy, one count of sexual assault against a person in custody, one count of child molestation, and one count of aggravated child molestation. A second indictment was issued on December 16, 2010, charging Serdula with four additional counts of unlawful surveillance, two additional counts of aggravated sodomy, and another count of sexual assault against a person in custody. On February 14, 2011, the State moved to join the indictments for trial, and the motion was granted.4
Prior to trial, Serdula filed a motion to recuse the trial judge, Judge Reuben Green, expressing concern that Green was an assistant district attorney during the time when he was indicted and that Patrick Head, the district attorney, was instrumental in helping Green secure his current position as a Cobb County superior court judge. Serdula attached an affidavit that he executed, claiming that there was a "close relationship" between Green and Head and contended that this relationship "may greatly influence the perception the Court may have in [his] case." Then, during the hearing on his motion, Serdula requested an evidentiary hearing before a different judge to determine the closeness of Green's relationship with Head. But Green denied the request, and ultimately, denied the recusal motion, finding Serdula's affidavit legally insufficient. Serdula also filed a pretrial motion to suppress evidence retrieved from his cell phone, which included video recordings of his criminal acts, but this motion was also denied following a hearing.
Ultimately, Serdula pleaded not guilty to all counts, waived his right to a jury trial, and stipulated to the facts detailed supra.5 Thereafter, Serdula proceeded to a bench trial at which he was convicted of all charged offenses. Serdula filed a motion for a new trial, but it was denied following a hearing.
Upon remand, Serdula's motion to recuse Green was assigned to a different judge. The new judge conducted a hearing on the motion, at which Head testified, and the motion was ultimately denied. The recusal order, in accordance with Serdula I , reentered Serdula's judgments of conviction. This appeal follows.
1. Serdula first argues that the trial court erred in denying his motion to recuse Green. We disagree.
This Court reviews a trial court's denial of a motion to recuse for abuse of discretion.10 In doing so, our analysis necessarily begins with Rule 25.3 of the Uniform Superior Court Rules, which provides:
When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse. The allegations of the motion shall stand denied automatically. The trial judge shall not otherwise oppose the motion. In reviewing a motion to recuse, the judge shall be guided by Canon 3 (E) of the Georgia Code of Judicial Conduct.11
And if all three criteria are met, another judge shall "be assigned to hear the motion to recuse."12 Furthermore, whether the three threshold criteria have been met is "a question of law, which an appellate court reviews de novo."13
Additionally, recusal on this ground requires "a rational basis for such questioning, not an arbitrary basis, even though no actual impropriety on the part of the trial court judge has been shown."16
In Serdula I , this Court questioned whether the averment of a "close relationship" between Green and Head would require assignment to another judge
because "this claim lacks objective facts regarding the relationship."17 But we also noted that even when the facts in an affidavit do not warrant recusal if assumed true, a judge "still maintains an ethical duty to recuse himself when he is independently aware of grounds to do so."18 Indeed, under the Georgia Code of Judicial Conduct, judges are to "act at all times in a manner that promotes public confidence in the impartiality of the judiciary."19 So, even though Serdula only alleged generally that Green and Head had a "close relationship[,]" we acknowledged in Serdula I that "Green ... later admitted during a hearing on a recusal motion in Post v. State[20 ] that Head had served as his campaign treasurer for his ultimately abandoned 2010 State Court campaign."21 And under ...
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