A Muscogee County man has been awarded a new murder trial after the Georgia Supreme Court said Superior Court Judge Bobby Peters made "an improper statement" during jury selection.
Steven A. Rouse was one of five people convicted in the 2006 murder of Scottie Gillen. The Supreme Court said Monday when Peters told prospective jurors "you will be hearing about a case, which is a murder case, that happened in Muscogee County " he made a reversible error in violation of Georgia Code § 17-8-5 because the location must be proven during trial.
The code says: "It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation 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 ."
In the 4-to-3 decision, Chief Justice Hugh Thompson wrote, "The court’s statement that jurors would be hearing a case that had happened in Muscogee County clearly and unambiguously suggested that venue in Muscogee County had been established or was not in dispute in this case. Venue is a jurisdictional element that must be proved by the State beyond a reasonable doubt in every criminal case, and the determination of whether venue has been established is an issue soundly within the province of the jury.”
In a 40-page dissent, Justice David Nahmias called on the General Assembly to amend the code, calling the majority's decision a "novel and unwarranted expansion" of the code.
Specifically, the dissent urges the General Assembly to consider repealing the second sentence of the statute which requires appellate courts to reverse the lower court’s decision and grant a new trial if a judge violates the statute.
"Never before has this Court reversed a conviction based on a trial judge’s comment of this sort – an isolated remark made while outlining for prospective jurors what sort of 'case' they would be 'hearing about' said during the most preliminary of instructions to the prospective jurors before voir dire questioning had even begun; accompanied shortly thereafter and followed repeatedly by explicit instructions to the jurors to decide the case based only on the evidence presented during trial and not to treat anything the court says as such evidence; never objected to by defense counsel during trial or by Rouse’s new appellate counsel on motion for new trial; and concerning an issue – venue – that the State proved without any dispute at trial and that remains entirely uncontested on appeal," the dissent reads.
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.