Battle v. StateBattle v. State
Appellant Maurice Murray Battle was convicted of the malice murder of Dipak Patel, the aggravated assault of Johnny Owens and Willie Griffin, and other crimes in connection with an armed robbery of a convenience store. Appellant contends that the evidence was legally insufficient to support his convictions; that the trial judge erred in not recusing himself from the case after learning of Appellant‘s alleged plot to kill him; and that Appellant‘s trial counsel provided ineffective assistance by not filing a motion for recusal of the trial judge. For the reasons that follow, we affirm.1
Harris initially had difficulty getting into the cash register, so Appellant, who was giving all the orders, told Patterson to help Harris and then “announced that this [is not] a regular robbery, this is a one eighty-seven” — slang for a homicide. Harris stuffed money from the cash register, cigars, and cigarettes into the book bag and ran out of the store to Stephens‘s waiting car. Appellant then fired a single shot at Patel, who was standing still with his hands above his head, before running out after Harris. The bullet pierced Patel‘s right lung and heart, and he died shortly thereafter.
Stephens drove Appellant and Harris home, where the men divvied up the money from the cash register. Neilisa Waller, Stephens‘s live-in girlfriend, described the scene as follows:
They pull a blue and black bookbag, brought it in the room, and poured the money and stuff on the bed. And all you hear is [Appellant] yelling I‘m going to get my first teardrop, I‘m going to get my first teardrop. . . . It means that you murdered someone.
In a telephone call from the jail that was recorded, Appellant told Waller where the rifle was hidden, and the police used this information to recover the rifle and book bag that Appellant and Harris had buried in the woods. A GBI firearms examiner testified that a spent cartridge case found at the crime scene was fired from the rifle. At trial, the store surveillance video was played for the jury, and Harris, Stephens, and Waller identified Appellant as the man shown shooting Patel in the video. Patterson, Owens, and Griffin also testified at trial but did not identify Appellant.
Appellant contends that the evidence at trial was vague, ambiguous, and conflicting, pointing to the jury‘s requests during its deliberations that the store surveillance video and recorded telephone call be replayed. However, “‘[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.‘” Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (citation omitted). When viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). Accordingly, we reject Appellant‘s challenge to the sufficiency of the evidence.
2. Appellant‘s other arguments all involve his assertion that the trial judge should have recused himself from the case based on an alleged plot by Appellant to kill the judge and several others involved with the case. We will outline the facts relevant to these arguments before addressing their merits.
The crimes occurred in August 2009. Prosecutors Sandra Matson and Elizabeth Bobbitt of the Macon Judicial Circuit District Attorney‘s Office were assigned to the case, and Appellant was indicted in April 2010. In May 2010, the State filed a notice of intent to seek the death penalty, and the case was assigned to Judge Edgar
On November 10, 2010, Judge Ennis held a preliminary status conference. A few days later, Matson and Bobbitt told Gardner that the District Attorney‘s Office had received information from an attorney for Frederick Edwards, an inmate housed in the same cellblock as Appellant at the Bibb County Jail, related to an alleged plot by Appellant to have five people associated with his case killed using explosives — Judge Ennis, Matson, Bobbitt, the lead detective, and Waller. Edwards told his attorney about the alleged plot and gave the attorney several papers that he claimed Appellant had given him to send to Appellant‘s mother so that the plot could be carried out at a later date by people outside the jail. The papers, which Edwards‘s attorney turned over to the District Attorney‘s Office, consisted of handwritten sketches showing the location of the entrance to a private elevator at the courthouse that goes directly to Matson‘s and Bobbitt‘s offices; a printout of a picture of Waller; and what appeared to be “plans and orders of events leading to the attack” with codes supposedly identifying the five targets.
A police investigator interviewed Appellant, who denied Edwards‘s claims. After interviewing Edwards twice, interviewing two other inmates on the same cellblock, and obtaining letters known to be written by Appellant, Edwards, and one of the other inmates he interviewed, the investigator told Matson and Bobbitt that he would not feel comfortable testifying in court that Appellant was actually plotting to have Judge Ennis and the others killed, because all he really had was the word of one inmate accusing another inmate.
In December 2010, the investigator sent the letters written by Appellant, Edwards, and the other inmate to the GBI Crime Lab for handwriting comparison to the papers that Edwards‘s attorney had provided. On February 21, 2011, a GBI examiner reported that while there were some similarities between the writing in Appellant‘s letter and the papers from Edwards‘s attorney, he could not testify that the writing on the papers was Appellant‘s; he could, however, testify that the writing on the papers was not Edwards‘s or the other inmate‘s. The investigator thought that with this new information, he had enough evidence to seek arrest warrants against Appellant.
On March 17, 2011, Appellant was arraigned on the indictment in this case. A week later, the police investigator obtained arrest warrants against Appellant for conspiracy to commit murder against Judge Ennis, Matson, Bobbitt, and the lead detective in this case (but
On June 15, 2011, the District Attorney‘s Office decided to drop the conspiracy charges due to insufficient evidence.2 At a status conference in August 2011, Gardner informed Judge Ennis that if the case moved forward as a death penalty case, Appellant would be filing a motion to disqualify the District Attorney‘s Office, and Appellant filed such a motion on November 3, 2011. At a status conference on March 15, 2012, Matson informed the court that after the August status conference, Gardner had given the State a copy of the motion to disqualify the District Attorney‘s Office that he planned to file along with substantial discovery regarding Appellant‘s history of mental health issues. Matson said that after reviewing the case and the new discovery, the State had agreed to withdraw its notice of intent to seek the death penalty if Appellant withdrew his motion to disqualify the District Attorney‘s Office. Gardner confirmed the agreement, noting that the motion to disqualify was based on concerns regarding the sentencing phase of the case as a death penalty case. After the status conference, Appellant filed a motion to withdraw his motion to disqualify the District Attorney‘s Office, which Judge Ennis granted, and the State then filed a notice of withdrawal of its notice to seek the death penalty. Appellant‘s trial started on July 30, 2012.
As we explained in State v. Hargis, 294 Ga. 818 (756 SE2d 529) (2014):
Even after [the defendant] learned of the grounds for the potential disqualification of the trial judge, he apparently decided to take his chances with the same judge . . . . That was his choice to make, but he could not do so and still preserve the disqualification issue for review in the appellate courts. To hold otherwise would be to sanction gamesmanship. . . . The idea that a party could allow a judge whom the party believes to be disqualified to continue to preside over the case without objection, only later to urge the disqualification, is inconsistent with the principles of fair play and judicial economy that are embodied in the requirement that a motion to recuse be filed promptly.
Id. at 822-823 (citations omitted). See also GeorgiaCarry.Org, Inc. v. Jones, 298 Ga. 420 (782 SE2d 284) (2016).
(b) Moreover, even assuming that a trial judge‘s failure to recuse sua sponte could in some rare instances constitute reversible error even though the parties knew of the grounds for recusal and did not seek the judge‘s recusal in a timely and proper way, there was no reversible error in this case.3 Absent extraordinary circumstances,
defendants could readily manipulate the system, threatening every jurist assigned on the “wheel” until the defendant gets a judge he preferred. Also, the defendant could force delays, perhaps making the cases against him more difficult to try, perhaps putting witnesses at greater risk. Such blatant manipulation would subvert our processes, undermine our notions of fair play and justice, and damage the public‘s perception of the judiciary.
In this case, as Judge Ennis explained in his order denying Appellant‘s motion for new trial, there was little to suggest that the alleged plot, if it existed at all, was serious or actionable or that Judge Ennis ever thought that it was realistic.5 It also appears that the District Attorney‘s Office and Appellant‘s own trial counsel (who had access to his client) concluded that the alleged plot, which was investigated and resolved well before Appellant‘s trial began, did not present a credible threat of harm to anyone. Under these circumstances, Judge Ennis would not have been required to recuse even if a timely and proper recusal motion based on the alleged plot against him had been filed. See United States v. Yu-Leung, 51 F3d 1116, 1119-1120 (2d Cir. 1995) (holding that the trial judge did not err in failing to recuse sua sponte where the judge “never made any
Appellant relies heavily on United States v. Greenspan, 26 F3d 1001 (10th Cir. 1994), in which the Tenth Circuit held that the trial judge‘s recusal was required despite the lack of a formal recusal motion where the judge was made aware after the defendant‘s conviction but prior to his sentencing that the defendant had contracted with third parties to kill the judge and his family. See id. at 1005-1007. Greenspan is a clear outlier among cases dealing with recusal based on threats against a judge by a criminal defendant, and its approach has been questioned by other courts. See State v. Riordan, 209 P3d 773, 776 (N.M. 2009); Basciano, 542 F3d at 957, n. 6. See also United States v. Cooley, 1 F3d 985, 993-994 (10th Cir. 1993) (recognizing that “threats or other attempts to intimidate the judge” are matters that “will not ordinarily satisfy the requirements for disqualification“).
In any event, Greenspan is factually distinguished from this case. The record in Greenspan showed that: (1) the defendant in that case and several others had engaged in a conspiracy across several states to kill the trial judge and his family by contributing “large sums of money” to hire a “hit man“; (2) the FBI investigated the threats, of which the trial judge was aware; and (3) after learning of the threats, the judge expedited the defendant‘s sentencing hearing and refused to continue the hearing at the request of defendant‘s new counsel, who was appointed only two days before the sentencing date, in order to ensure that the defendant would be moved to the federal penitentiary system where he could be monitored more closely. Greenspan, 26 F3d at 1005. In light of the judge‘s knowledge of credible threats, his acceleration of the defendant‘s sentencing hearing, and his refusal to grant a continuance despite new counsel, along with the government‘s concession that “a reasonable person might have questioned the judge‘s impartiality,” the Tenth Circuit concluded that the “totality of the circumstances . . . contributed to an appearance that the trial court was prejudiced against [the defendant].” Id. at 1006.
As explained above, in this case there is little to indicate that the alleged plot by Appellant to kill Judge Ennis was serious or credible or that Judge Ennis believed that it was. Moreover, Appellant points to no allegedly improper rulings by Judge Ennis that might have been motivated by bias resulting from the threat. See Basciano, 542 F3d at 957. And the State does not concede that the judge‘s recusal was necessary. Accordingly, even if Greenspan was correctly decided, Appellant is not entitled to a new trial.
(c) Finally, Appellant repackages his recusal claim as an argument that his experienced lead trial counsel, Brad Gardner, provided
As discussed previously, Gardner spoke with the police investigator and his supervisor about the alleged plot by Appellant, and those discussions left Gardner with the impression that they did not think that the plot was credible. Gardner then researched the recusal issue, discussed the matter with co-counsel, and spoke with Appellant, who denied the allegations, before making the strategic decision not to seek Judge Ennis‘s recusal and instead to seek to disqualify the District Attorney‘s Office. “Counsel‘s trial tactics and strategic decisions will not support a claim for ineffective assistance unless they were so patently unreasonable that no competent attorney would have chosen them.” Schutt v. State, 292 Ga. 625, 627 (740 SE2d 163) (2013) (citation and punctuation omitted).
With both the death penalty and the new conspiracy-to-murder charges against Appellant looming, Gardner moved to disqualify the District Attorney‘s Office in an attempt to convince the State to withdraw its intent to seek the death penalty. This strategy ultimately proved successful, and the death penalty notice and motion to disqualify were both withdrawn. Gardner testified at the motion for new trial hearing that he knew that he could move for Judge Ennis‘s recusal but made the deliberate, strategic decision not to do so because Judge Ennis had not made any rulings that Gardner thought were improper, Appellant had not raised any concerns about Judge Ennis‘s impartiality, Judge Ennis had not expressed any concern about the alleged plot, and Gardner‘s research suggested that a recusal motion would likely fail. Gardner also thought that, given the overwhelming evidence of Appellant‘s guilt, having a different judge preside over the case would not result in a different outcome. In light of these circumstances, Appellant has failed to show that Gardner‘s strategic decision not to file a timely motion seeking Judge Ennis‘s recusal was patently unreasonable, and Appellant therefore has failed to prove deficient performance.
In addition, Appellant has not demonstrated that if a timely motion to recuse Judge Ennis had been filed, there is a reasonable probability that the outcome of the proceedings would have been
Judgment affirmed. All the Justices concur.