One of the five people convicted in the 2006 murder of Scottie Gillen is requesting the Georgia Supreme Court grant him a new trial under grounds the judge made a "reversible error" when he mentioned during jury selection the homicide occurred in Muscogee County.
Steven A. Rouse was the only one from the group connected to the murder to go to trial. His brother Brian Dewberry, Charles Mellinger, and Missy and Melissa Conaway all accepted plea deals in exchange for testifying against him.
Gillen was found gasping for air along Kaiser Drive. He died Sept. 3, 2006, before the ambulance arrived.
According to court testimony, Gillen, a 33-year-old divorced father of four, had been texting the Conaway sisters the week before his death. Missy and Melissa lived together with their boyfriends, Dewberry and Mellinger.
The night before Gillen was killed the women showed their boyfriends the text messages Gillen had sent Missy. They were sexual in nature, offering to have sex with either of the sisters. Dewberry and Mellinger were angry and formed a plan to lure Gillen to the house to beat him.
Instead, the sisters hatched a plan to rob Gillen, who usually carried a lot of money. Rouse became involved when his brother, Dewberry, asked for his help in beating and robbing Gillen.
The day after the boyfriends saw the test messages, Melissa met Gillen and had him park in a field near apartments in the area of Lamore Street and Snelling Drive. After Melissa walked away, Rouse, Mellinger and Dewberry walked out of the woods and up to the truck. After Rouse struck up a 20-minute conversation with Gillen about go-carts and trucks, Rouse struck Gillen and knocked him off the tailgate onto the ground, according to court testimony.
That's when Rouse allegedly got on Gillen's back and put him in a chokehold, repeatedly telling Gillen to "go to sleep." Dewberry meanwhile kicked Gillen in the stomach while Mellinger punched him in the face. After Rouse released Gillen, he rolled him face down in the grass so Mellinger could take his wallet, which had no money in it.
The three men were arrested later that day.
A forensic pathologist testified that Gillen suffered numerous head and neck injuries, but the injuries to Gillen's neck alone would have been fatal. Rouse denied placing Gillen in a chokehold but said he did kick him in the face two or three times, with one of those times possibly hitting him in the throat. He said he only hit Gillen because Gillen "snapped" and tried to attack him.
In exchange for their testimony, Mellinger and Dewberry accepted charges of voluntary manslaughter and robbery, with Mellinger agreeing to a 30-year sentence with 25 to serve and Dewberry agreeing to serve 20 years in prison. Melissa Conaway pleaded guilty to robbery and remains in prison, and her older sister, Missy, is out on parole after serving time for conspiracy.
At the trial in August 2007, Rouse's attorney argued all three men were equally responsible for Gillen's death, asking the jury to convict on voluntary manslaughter and robbery. However, Rouse was found guilty of felony murder and robbery and sentenced to life in prison.
Rouse's attorney is arguing for a new trial after he says Superior Court Judge Bobby Peters made a "reversible error" by telling prospective jurors during the jury selection process "that you will be hearing about a case, which is a murder case that happened in Muscogee County."
His attorney's argue Peter's statement was a comment on venue, which is a violation of Official Code of Georgia § 17-8-5.
"According to § 17-8-5, a courts comment on a fact to be proved by the State '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. ' Because the jury began this trial having been told by the court that venue was in Muscogee County, Rouse must be granted a new trial."
The high court has reversed a lower court's ruling before in Patel v. State after a judge said the "venue is proper in Fayette County or we wouldn't be here right now." The high court ruled the judge's offending comment was not "the type of palpable 'slip of the tongue' that appellate courts have excused from the strict mandate of § 17-8-5."
District Attorney Julia Slater, who will represent the State, will argue it "was a palpable slip of the tongue and it could not have misled or confused the jury and was not a judicial expression of opinion or venue."
The Georgia Supreme Court will hear these arguments Monday.