Rembert v. State
324 Ga. App. 146
Ga. Ct. App.2013Background
- Defendant Craig Rembert convicted by jury of one count of armed robbery based on victim eyewitness ID and security-video evidence; similar-transaction evidence of a prior robbery was admitted.
- Before trial State requested written notice of any alibi 10 days before trial; defense failed to provide timely alibi notice. On morning of trial defense sought a continuance and offered mother and brother as alibi witnesses; court denied continuance and excluded alibi evidence.
- Security videos were shown; a friend of the family (Christopher Daly) thought he recognized Rembert from the video and told others; victim identified Rembert from a driver’s-license photo in a photographic lineup and at trial.
- The judge had previously, while serving as an assistant district attorney, prosecuted Rembert in an earlier case that resulted in a negotiated plea (the similar transaction). Defense did not move to recuse the judge at trial.
- Rembert moved for a new trial raising: denial of continuance/exclusion of alibi, admission of Daly’s identification testimony, admission of similar transaction evidence, denial of mistrial after parole/probation reference, judge should have recused sua sponte, and ineffective assistance of counsel. Trial court denied new trial; appellate court affirmed.
Issues
| Issue | Rembert's Argument | State's Argument | Held |
|---|---|---|---|
| Exclusion of alibi / denial of continuance | Exclusion was abuse of discretion because no bad faith or prejudice shown | Late notice deprived State statutory 10 days to investigate; facts support bad faith and prejudice | Affirmed: trial court within discretion to exclude alibi and deny continuance (bad faith and prejudice implicitly found) |
| Admission of Daly’s testimony that he recognized defendant on video | Testimony was improper opinion ID; trial counsel failed to object (and thus plain error) | No objection at trial; plain-error review inapplicable; merits addressed under ineffective assistance | No plain error; reviewed under ineffective-assistance claim and found no prejudice from testimony |
| Admission of similar transaction evidence | Prior robbery differed (mask, accomplices) so not sufficiently similar | Prior incident showed common features (business patron, lone female employee, gun, demand for money); admissible to show bent of mind/course of conduct | Affirmed: trial court did not abuse discretion admitting similar transaction for bent of mind/course of conduct |
| Failure to recuse judge sua sponte | Judge previously prosecuted Rembert in the similar-transaction case; should have recused | Prior prosecution in unrelated matter alone is not automatic grounds for disqualification | Affirmed: no error—prior service as prosecutor in separate case alone does not require recusal |
Key Cases Cited
- Martinez v. State, 306 Ga. App. 512 (discussing standard of review on appeal from criminal conviction)
- Theophile v. State, 295 Ga. App. 517 (trial court may implicitly find prejudice and bad faith when excluding evidence for discovery violations)
- Huckabee v. State, 287 Ga. 728 (State presumed prejudiced when denied ten days to investigate alibi)
- Freeman v. State, 245 Ga. App. 384 (prejudice results when prosecution lacks time to develop rebuttal to alibi)
- Cherry v. State, 299 Ga. App. 194 (standards for admissibility of similar-transaction evidence)
- Phillips v. State, 287 Ga. 560 (focus on similarities, not differences, for similar-transaction admissibility)
- Grimes v. State, 280 Ga. 363 (prior armed-robbery evidence admissible when similar in relevant respects)
- Guyton v. State, 272 Ga. 529 (sufficient similarity where both offenses involved women alone, handgun, and demand for property)
- Durham v. State, 292 Ga. 239 (plain-error review in Georgia limited; does not apply to admission of evidence)
- Strickland v. Washington, 466 U.S. 668 (establishes deficient-performance and prejudice standards for ineffective-assistance claims)