If you witness a crime, here’s what to do
Claiming errors in his 2009 trial, the man convicted in the June 17, 2007, shooting death of off-duty Muscogee Sheriff’s 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 Roger’s 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 detective’s testimony regarding Taylor was among the issues Pyatt’s attorney William Mason raised during Wednesday’s new trial hearing before Superior Judge Art Smith III. Mason contended Pyatt’s 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 Mason’s primary focus was on Garner’s 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 Pullen’s chambers be added to the trial record, nor seek the judge’s recusal, he said. To do so would have damaged his client’s case at trial, he said.
“When you try a case in front of Judge Pullen, he’s your opponent, not the DA,” Garner said.
Of his declining to put Pullen’s advice to Breault in the trial record, he said: “That wasn’t trial strategy, that was just survival.”
When Garner added that personally he liked Pullen, Mason wryly remarked: “I’m glad he’s not your enemy.”
In a telephone interview later Wednesday, Pullen denied Garner’s accusation.
“The main thing is it didn’t 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 ain’t 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 prosecution’s 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 Taylor’s 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 jury’s 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 judge’s advice to the prosecutor, “that’s error,” he said, particularly if the judge was aiding the prosecution.
“A judge shouldn’t have an interest in who wins or loses,” he said.
Neither Pullen nor Breault was at Wednesday’s 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.