Claiming errors in his 2009 trial, the man convicted in the June 17, 2007, shooting death of off-duty Muscogee Sheriffs Deputy Meredith Rhodes is seeking a new trial.
Tremaine Pyatt, 30, claims then-Superior Court Judge Doug Pullen made improper comments in front of the jury and advised the prosecution to alter its strategy to match the instructions the judge would give the jury before its deliberations.
On Aug. 6, 2009, Pyatt was convicted of felony murder and three counts of aggravated assault for fatally wounding Rhodes and firing at two women about 2 a.m. outside Rogers Tap Room, 4950 Steam Mill Road. Police said Pyatt fired a pistol at Rhodes car as it passed by.
Police initially charged both Pyatt and Joseph H. Taylor with the homicide, but investigators said they cleared Taylor, whom a grand jury declined to indict.
A detectives testimony regarding Taylor was among the issues Pyatts attorney William Mason raised during Wednesdays new trial hearing before Superior Judge Art Smith III. Mason contended Pyatts trial attorney, Michael Garner, should have objected when Detective Robert Jackson testified that Taylor was 100-percent cleared of any wrongdoing though a witness said Taylor was the shooter and when Jackson gave his opinion that a so-called warning shot fired over Rhodes car constituted aggravated assault.
But Masons primary focus was on Garners recalling that Pullen in his chambers advised then-Assistant District Attorney Doug Breault to shift his strategy from claiming Pyatt was the lone shooter to saying he was a party to the crime, meaning he participated with others in firing at Rhodes car.
Breault had not used the parties to a crime theory in his opening statement to the jury, and did not switch to it until Pullen told him he was losing the case, and informed him the jury would be instructed to consider the parties to a crime theory, Garner testified Wednesday.
Though Garner filed a written objection to including parties to a crime in the jury instructions, he did not demand the conversation held in Pullens chambers be added to the trial record, nor seek the judges recusal, he said. To do so would have damaged his clients case at trial, he said.
When you try a case in front of Judge Pullen, hes your opponent, not the DA, Garner said.
Of his declining to put Pullens advice to Breault in the trial record, he said: That wasnt trial strategy, that was just survival.
When Garner added that personally he liked Pullen, Mason wryly remarked: Im glad hes not your enemy.
In a telephone interview later Wednesday, Pullen denied Garners accusation.
The main thing is it didnt happen, said the retired judge and former district attorney. If it had, Garner would have put it on the record, he said.
You can accuse Mike of a lot of things, but being a shy child aint on the list, he added. If that had happened, he would have walked into the courtroom and done something about it right then and there.
Garner in court Wednesday said witnesses testimony was another factor in the prosecutions changing its approach: A firearms expert said the bullet that killed Rhodes likely came from a .357-caliber Glock pistol, a large, black handgun, Garner said. Witnesses said Pyatt that night had a small, silver-plated pistol, he testified.
He added that witnesses told police eight or nine people at the bar had guns that night, and various spent shell casings littered the ground.
Mason also argued it was improper for Pullen to comment on the value of a prosecution witness statement.
That was Taylors testimony, which Breault at one point characterized as critical, to which Pullen responded, It is.
Yet Pullen seemed to discount a defense witness credibility in the jurys presence by telling deputies, Take her back to jail, when she was excused, Mason said.
Assistant District Attorney Brad Bickerstaff noted the jury already knew the witness was in jail because she had said so earlier.
The prosecutor also pointed out that Breault was not prohibited from arguing the parties to a crime theory in his closing just because he did not use it in his opening statement to the jury.
Mason countered that whether Breault used it in his opening statement was not the issue: If the theory came from the trial judges advice to the prosecutor, thats error, he said, particularly if the judge was aiding the prosecution.
A judge shouldnt have an interest in who wins or loses, he said.
Neither Pullen nor Breault was at Wednesdays hearing, which Smith decided to continue later so Bickerstaff could call Breault to the witness stand.
Pyatt is serving a life sentence for Rhodes murder.