Muscogee Superior Judge Doug Pullen improperly expressed his opinion during a trial, the Georgia Supreme Court said today, backing an appeals court's decision to overturn an alleged armed robber's convictions.
In the Columbus case of The State v. Anderson, the Georgia Court of Appeals had reversed George Anderson’s convictions for armed robbery, kidnapping, possession of a firearm during a crime and financial transaction card fraud.
According to testimony, Roberta Cameron was working at Sally’s Beauty Supply in July 2004, when a man later identified as Anderson came in armed with a gun and wearing a mask. He made Cameron lie down in an office at the back of the store, duct-taped her hands behind her back, took money from a safe and stole Cameron’s credit cards.
He then went to Columbus' Peachtree Mall and bought tennis shoes at Underground Station, using one of Cameron’s credit cards. The saleswoman knew Anderson as a regular customer, and later identified him.
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At trial, the shoe store employee said she had since left the Columbus store to work at an Underground Station in Atlanta.
That prompted Pullen to ask Assistant District Attorney Richard Mobley whether he had established venue, to show the credit-card transaction occurred in Muscogee County. Then the judge asked the witness: “The store where you were working on the 13th where the shoes were bought using the transaction card was in Muscogee County, is that accurate?” She said it was, and Pullen then added: "I just wanted to make sure."
Prosecutors must prove venue beyond a reasonable doubt. Anderson's defense attorney, William Mason, argued that Pullen violated a state law that in part says: “It is error for any judge in any criminal case … to express or intimate his opinion as to what has or has not been proved.”
The law says that if a judge improperly gives his opinion, the conviction must be reversed and a new trial granted. So the Court of Appeals reversed Anderson’s convictions and ordered a new trial.
In today's opinion authored by Chief Justice Carol Hunstein, the Georgia Supreme Court agreed, distinguishing Anderson's case from an earlier decision, State v. Gardner, in which it ruled a judge had not improperly expressed his opinion.
The court noted in that case, the judge only directed a prosecutor to prove venue, then asked whether venue had been established, and then suggested the prosecutor establish it when the prosecutor said he hadn't yet.
“Here, however, the trial court’s comments went beyond those in Gardner, ultimately resulting in an expression of opinion,” says the Anderson decision. “Although a trial judge has the discretion to propound questions to a witness in order to clarify testimony … the comment ‘I just wanted to make sure’ following the trial court’s questioning of the witness constituted an expression of opinion that venue had in fact been proven.”
The prosecution in its appeal argued that even if the judge improperly expressed an opinion, the appeals court should not have reversed all of Anderson’s convictions, because Pullen's comments on venue applied only to the fraud charge. “We disagree, as the plain language of the statute provides for reversal of the entire case, not a portion thereof,” Hunstein wrote.
In a special concurrence, Justice P. Harris Hines joined by Justice Hugh Thompson said the majority failed to distinguish a clear difference between the Anderson and Gardner cases, and should have ruled in favor of the defense on Gardner, too:
“The addition of the comment, ‘I just wanted to make sure,’ upon which the majority relies for its declaration that these two cases differ, does not transform the remarks here into a violation…. Both instances of trial court conduct violated the statute, and this court should have upheld the statute in Gardner, as it does now.”