Lead Opinion
Robert McIntyre was tried before a jury and found guilty of murder. He appeals from the judgment of conviction and life sentence entered by the trial court on the jury’s guilty verdict.
1. When the evidence is construed most strongly in favor of the State and against McIntyre, the jury was authorized to find the following: McIntyre became a member of a Satanic group of which Terry Chapman was the leader. Malisa Earnest and the victim were runaways who were given shelter by Chapman. The victim rejected McIntyre’s sexual advances. Subsequently, McIntyre, Chapman and Ear
This evidence was sufficient to authorize a rational trier of fact to find proof of McIntyre’s guilt of murder beyond a reasonable doubt. Jackson v. Virginia,
2. During the trial, Judge Robert Noland initially presided, but had to leave during the State’s presentation of evidence in order to attend the funeral of his infant grandson. Judge Robert James replaced Judge Noland over McIntyre’s objection. McIntyre contends that the substitution of judges constituted a violation of his Sixth and
It is the general rule that any error in the substitution of judges is subject to harmless error analysis. Jimenez v. State,
Similarly, in Georgia, the temporary absence of a trial judge without suspension of the trial is not a basis for reversal unless the complaining party shows prejudice resulting from the absence. Koza v. State,
3. McIntyre urges that the statement that he made to his mother should have been suppressed as the product of an illegal arrest and impermissible interrogation. However, once the officer in Louisiana determined that the van was reported as stolen and its occupants reported as runaways, he had probable cause to stop the van and arrest its occupants. After his lawful arrest in Louisiana, McIntyre gave valid consent to his return to Georgia in accordance with Article VI of OCGA § 39-3-2. By the time that McIntyre had returned to Georgia, the authorities had discovered the body of the victim and had probable cause to arrest him for murder. After being given his Miranda warnings, McIntyre made no incriminating statement to the sheriff. He did, however, make a spontaneous incriminating statement to his mother in the sheriff’s presence. Arizona v. Mauro,
The requirement that a prior conviction be proved by a certified copy is an application of the “best evidence” rule and an objection to proof of a prior conviction by secondary evidence may be waived. Moret v. State,
On direct examination, Chapman admitted his conviction for the murder and there was no objection raised by McIntyre. On cross-examination, Chapman again admitted his conviction for the murder and there was no objection raised by the State. Murder is a crime of moral turpitude. It follows that the “best evidence” objection was waived and that Chapman’s prior conviction of a crime of moral turpitude was proved by secondary evidence. Compare O’Toole, supra (no secondary evidence admitted without objection); Mincey v. State,
However, harm as well as error must be shown for reversal. Wood v. State,
5. Over McIntyre’s relevancy objection, the trial court allowed the sheriff to testify that, when he attempted to question other purported members of the Satanic group, they “took their rights” and refused to answer his questions.
However, McIntyre has failed to show any prejudice resulting from this passing reference to non-witnesses’ out-of-court invocation of their “rights.” Compare Lingerfelt v. State,
6. Evidence regarding satanism was properly admitted as relevant to the motive for the murder. Whitener v. State,
7. The attack which McIntyre makes on the constitutionality of former OCGA § 15-11-5 (b) was rejected in the appeal of Chapman. Chapman, supra.
8. It was not error to fail to give McIntyre’s written request to charge on voluntary manslaughter as a lesser included offense, since there was no evidence of provocation which would authorize a finding that the homicide was an act of voluntary manslaughter rather than murder. Duquette v. State,
9. McIntyre urges that the trial court erred in admitting hearsay testimony regarding statements made by Chapman after the termination of the conspiracy. However, the portions of the transcript wherein he contends that this occurred do not relate to the admission of any post-conspiracy statements attributed to Chapman. Instead,
Judgment affirmed.
Notes
The murder was committed on January 17,1988 and McIntyre was indicted on March 1, 1988. The guilty verdict was returned on June 10, 1988 and, on that same date, the judgment of conviction and sentence was entered thereon. The motion for new trial was filed on July 6, 1988 and denied on June 11, 1993. McIntyre’s motion for an out-of-time appeal was granted on January 4,1995. The notice of appeal was filed on January 12,1995 and the case was docketed in this Court on April 7, 1995. Oral argument was heard on June 26, 1995.
Concurrence Opinion
concurring.
There is a significant possibility that a criminal defendant’s trial may be rendered fundamentally unfair by the replacement, after evidence has been introduced but before the verdict is rendered, of the judge originally hearing the trial. In light of the serious consequences of the substitution process on a criminal defendant’s trial, it behooves this Court to set forth guidelines trial judges should follow to ensure against any fundamental unfairness in future criminal trials.
I agree with several of the safeguards detailed in the dissenting opinion that would serve to eliminate the possibility of a substitution rendering a criminal trial fundamentally unfair. I would have the departing judge set forth on the record the reasons for which the departure is necessary. Those reasons must be of sufficient magnitude to justify the departure. Furthermore, all other alternatives to substitution should be fully explored and, except in situations where alternatives are clearly not applicable, the reasons behind the decision not to utilize them should also be set forth in the record. Finally, I would have the replacement judge scrupulously review the prior proceedings and state on the record his or her familiarity therewith so as to establish that the replacement judge is fully prepared to render informed rulings on any matters that might arise and to instruct the jury thoroughly.
Although there was no requirement that the above matters be made of record at the time of McIntyre’s trial, an application of these safeguards to this case reveals no reversible error. The record establishes that the original judge carried on with his duties notwithstanding the personal anxiety that must have resulted from knowing of his grandchild’s critical illness and that it was only with the child’s tragic passing and upon his son’s request for his father’s presence that the judge determined it was no longer possible for him to continue sitting on the bench during the remainder of McIntyre’s trial. There is no question that the death of the judge’s grandchild excused him from the bench and, in light of the devastating and prolonged effect such a loss has on a deceased child’s family, clearly justified the decision not to grant a continuance in the case.
As to the replacement judge’s familiarity with the prior proceedings, I disagree with the dissent’s intimation that the transcript re-
Accordingly, because McIntyre has not shown reversible error and an independent examination of the record establishes that McIntyre’s trial was not rendered fundamentally unfair by the substitution of the original judge, I can therefore concur with the majority’s holding in Division 2. I fully concur in the remaining divisions.
The transcript reveals that defense counsel initially requested the replacement judge “out of an abundance of caution” to review only the transcripts of pre-trial motion hearings; the prosecutor stated he would provide the judge with the State’s copy of the transcripts for the judge to review that night. No further discussion was had at that point and the trial proceeded. The next day, after defense counsel objected to the prosecution’s suggestion that the judge review videotapes of the trial made by the media, the judge asked defense counsel to point out any particular harm that could result from the substitution. When defense counsel noted the technical jury instructions the defense would be requesting, the judge noted that the testimony on which the charges would be based had been taken down and stated, “it’s available to the Court to review and the Court would have to make any ruling based on the testimony, would it not?” Defense counsel then expressed doubt whether the trial transcript would be prepared in time and the judge stated that the defense could select the necessary passages. The prosecution challenged defense counsel’s claim that the transcript would not be ready, noting that the court reporter had been able in the past to prepare the daily trial transcript and could do so if required or requested. No such request or requirement was made a part of the record.
Concurrence Opinion
concurring in part and dissenting in part.
1. The majority opinion in Division 2 makes this the first State Supreme Court in the nation that has failed to acknowledge the established principle that the mid-trial substitution of a judge prejudices a criminal defendant’s right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution. Despite the existence of an enormous body of instructive case and statutory law which establishes this principle, the majority opinion merely “as
2. First, Division 2 of the majority opinion lacks any authority to support its conclusion. People v. Espinoza,
Moreover, the majority fails to note that the substitution of the trial judge in Espinoza was made pursuant to California Penal Code § 1053, which legislatively provides for the substitution of a trial judge who becomes incapacitated and cannot complete the trial.
The majority’s reliance at p. 9 upon Koza v. State
Nor does United States v. Boswell support the majority’s conclusion that the mid-trial substitution of a judge is generally subject to harmless error analysis. Op. at 9. The defendant in Boswell consented to the substitution of the judge during closing arguments, after the close of evidence,
3. While the question of whether different judges may preside over a criminal trial despite the objection of counsel is one of first impression for this Court, it has been addressed by other federal and state courts.
Until quite recently, virtually all jurisdictions have subscribed to a general rule that prohibits entirely the substitution of a judge in a criminal trial after the introduction of evidence and before the verdict is rendered.
Some courts also have recognized that the right to a criminal trial by jury means a
trial by a tribunal consisting of at least one judge and twelve jurors, all of whom must remain identical from the beginning to the end. . . . The continuous presence of the same judge and jury is equally essential throughout the whole of the trial.22
Under the general rule, a criminal defendant’s right to a fair and impartial trial is prejudiced, and a reversal of any conviction is mandated, when he is denied adjudication of his guilt or innocence before a presiding judge with first-hand knowledge of all of the trial’s proceedings.
I agree with the general rule against substitution of a judge over a party’s objection insofar as it recognizes that the due process right to a fair and impartial trial requires that the judge who charges the jury, exercises judicial discretion, and presides over the adjudication of innocence or guilt must be thoroughly knowledgeable of what has transpired during the trial. However, I disagree with the general rule insofar as it reasons that these necessary components of a fair trial can only be provided by a judge who gained his knowledge of a trial’s proceedings due to his actual presence in the courtroom.
As explained below, I believe that there may be some rare instances when it is absolutely imperative to the due administration of justice to allow the substitution of a judge, so long as procedural and substantive safeguards are put in place to protect the defendant’s right to a fair trial. For example, it may be necessary to substitute a presiding judge who becomes completely incapacitated, and incapable of fulfilling his duty to preside over an entire trial, at a late stage of
In those types of circumstances, with the aid of advanced techniques for recording trial proceedings, the procedures which are explained below would safeguard the right to a fair trial while simultaneously allowing the trial to continue before a substitute judge. Because the general rule’s inflexibility does not provide for these types of rare instances, and cannot accommodate the few situations when judicial substitution should be allowed, I would reject the general rule’s blanket prohibition against the substitution of a judge, and advocate the adoption of these procedural safeguards.
4. A number of States, as well as the federal government, have modified the general rule by establishing procedures to govern the exceptional instances when the substitution of a judge should be allowed over a party’s objection.
First, it should be unequivocal that the substitution of a judge should never be permitted except in the most extraordinary circumstances.
Second, the substitution of a judge should be absolutely necessary.
Third, substitution of a judge should be imperative to the due administration of justice.
Finally, in those rare instances when, after complying with the rules discussed above, it is determined that substitution of a judge should be allowed, before a substitute judge presides over the trial,
Absent compliance with the rules discussed above, it should be presumed that the substitution of a judge has prejudiced a criminal defendant’s right to a fair and impartial trial, and a new trial should be awarded unless the presumption of prejudice is rebutted.
5. In this case, Judge Noland’s relinquishment of the bench to Judge James was not done in a manner which safeguarded McIntyre’s right to a fair trial. First, the record fails to support a finding that Judge Noland was debilitated and incapable of presiding over McIntyre’s trial. The loss of Judge Noland’s grandchild was tragic and traumatic, and would have justified an extended temporary absence from the bench. However, nothing in the record supports a finding that his unfortunate loss constituted an incapacitating trauma. Contrary to the concurring opinion, I do not in any way mean to imply that the death of a family member cannot be an incapacitating or debilitating event; common sense and decency dictate otherwise.
Second, it was not necessary to substitute the judge in this case because a continuance could and should have been ordered. Judge Noland left the bench on June 8, 1988, in order to attend a funeral held on the following morning. Allowing time to spend with his family, surely a priority under the circumstances, it would have been reasonable to expect Judge Noland to resume his position on the bench within seven days. Hence, a continuance of no more than one week, while slightly inconvenient, would have been eminently possible and certainly preferable to the drastic step of substituting the judge. The State’s claim that a continuance would have been problematic because of its busy trial calendar and the scheduling of its witnesses was insufficient to preclude ordering a continuance. Under these circumstances, where a continuance was the most reasonable and efficient means available, I believe that it was error not to order that the trial be continued until Judge Noland could resume his place on the bench and fulfill his duty to preside over the trial.
Third, the trial court erred in failing to balance the circumstances of McIntyre’s trial at the time of substitution and determine whether the due administration of justice favored allowing substitution rather than declaring a mistrial. Because the trial court failed to make this determination by balancing factors such as, inter alia, how much time McIntyre’s trial had already consumed, the anticipated amount of time necessary to complete McIntyre’s trial, the expense of retrial, whether rulings on any evidentiary issues were pending, and whether the State had nearly completed the presentation of its case against McIntyre, there is no record from which to determine whether the due administration of justice warranted permitting the substitution of Judge Noland.
Finally, despite defense counsel’s request that he do so, Judge James expressed reluctance to review the transcript of prior proceedings, and before assuming the bench failed to certify for the record that he had reviewed the trial record and was prepared to preside over and complete the trial. Indeed, contrary to the concurring opinion, the only logical conclusion to be drawn is that Judge James did not review the record before taking the bench, as he became the presiding judge only 15 minutes after Judge Noland stepped down. I believe that Judge Noland’s failure to comply with these rules governing the substitution of a judge, along with Judge James’ failure to familiarize himself with the prior proceedings before taking the bench, deprived McIntyre of a fair trial by (1) allowing the substitution of a judge when it was not absolutely necessary, and without first determining whether it was imperative to the due administration of justice; and (2) permitting a judge who was not knowledgeable of the entire
6. The majority opinion incorrectly states that the “general rule” is that the substitution of judges is subject to harmless error analysis. Not only do the cases cited by the majority fail to support this ruling, recent United States Supreme Court rulings lead me to conclude that the erroneous substitution of a judge and resulting denial of the right to a fair trial is one of the very limited class of errors that is not susceptible to harmless error analysis.
The current test for determining which errors are subject to harmless error analysis was established in Arizona v. Fulminante,
The error of substituting a judge without the imposition of constitutional safeguards to ensure the preservation of the right to a fair trial is not capable of being qualitatively assessed with “other evidence” to determine whether “its admission” was harmless beyond a
7. I agree with Division 4 of the majority opinion that the trial court erred in failing to give McIntyre’s requested jury charge regarding witness impeachment. I write separately in order to highlight the change in our precedent that this ruling represents.
The majority’s ruling recognizes that, for purposes of a requested charge on witness impeachment, there is no basis for distinguishing between the State’s failure to object to a line of testimony sought on cross-examination, and the State’s elicitation of that same line of testimony on direct examination. If the former constitutes a waiver of the best evidence rule, then so must the latter. In this case, the State waived its best evidence objection for purposes of the witness impeachment charge sought by the defense when it elicited on direct examination its own witness’s admission to a prior criminal conviction. Having elicited such an admission from its own witness, the State cannot complain that the conviction is not established for purposes of a jury charge on impeachment without a certified copy of the conviction.
I am authorized to state that Presiding Justice Fletcher joins in this partial concurrence and partial dissent.
In Espinoza, the California Supreme Court rejected certain reasoning discussed in Freeman v. United States, 227 F 732 (2nd Cir. 1915) that the right to a trial by jury means the right to a tribunal consisting of 12 jurors and a single judge, all of whom must remain constant throughout the trial. Id. at 759-760. Freeman reasoned in part that because the right to a trial by jury could not be waived, the right to a single judge was inviolate. Id. In light of the United States Supreme Court’s subsequent ruling that the right to a jury trial can be waived, see Patton v. United States,
See notes 15-21, infra, and accompanying text.
Espinoza,
See 73 ALR Fed. 833, 839, § 4; 75 AmJur2d 444, § 222. The majority has overlooked the fact that, even with the added safeguard of Federal Rule 25 (a), at least one noted commentator maintains that, absent the defendant’s consent, the substitution of a judge after the evidentiary portion of a criminal trial has begun is unconstitutional. See C. Wright, 2 Federal Practice & Procedure, § 392 (1982).
Espinoza,
Id.,
See, e.g., n. 5, supra; Jones v. State,
Notably, the substitution in this case occurred almost exactly at the half-way point of the evidentiary period of the five-day trial — after two and one-half days of testimony, and at a point where the State had introduced forty-four of its eighty-eight pieces of evidence.
565 F2d 1338,1341 (5th Cir. 1978). Contra Randel v. Beto, 354 F2d 496, 501 (5th Cir. 1965), cert. denied,
See Griner v. State,
Any intimation by the majority that this issue has previously been considered by Georgia courts is misguided. As noted, the majority’s reference to Koza is misplaced, as the substitution at issue in that case took place during voir dire. See notes 8, 10, supra.
See, e.g., Randel v. Beto, 354 F2d at 501; Hood v. State,
See Thompson,
Thompson,
Durden,
McCline,
Freeman,
See Randel, 354 F2d at 500; McClain,
See, e.g., Alaska Rules of Crim. Pro., Rule 25; Arizona Rules of Crim. Pro., Rule 19.5; California Penal Code at 1053; Delaware Court of Common Pleas Rules of Crim. Pro., Rule 25; Florida Rules of Crim. Pro., Rule 3.321; Iowa Rules of Crim. Pro., Rule 18 (7) (b); Maryland Rules of Crim. Pro., Rule 750; Massachusetts Rules of Crim. Pro., Rule 38; Minnesota Rules of Crim. Pro., Rule 26.03 (13); Nevada Revised Statutes at 175.091; North Dakota Rules of Crim. Pro., Rule 25; Ohio Rules of Crim. Pro., Rule 25; Puerto Rico Rules of Crim. Pro., Rule 186; Virgin Islands Rules of Crim. Pro., Rule 25; Virginia Code at 19.2-154; Wyoming Rules of Crim. Pro., Rule 26; Fed. R. Crim. Pro. 25 (a).
Randel, 354 F2d at 501; Hood,
See Randel, 354 F2d at 501; Hood,
See Randel, 354 F2d at 500-501.
Randel, 354 F2d at 501; Hood,
Randel, supra; Hood, supra; Thompson, supra.
See McKinley,
Cf. Hood,
See McKinley,
Hood,
Hood,
See Hood,
See Hood,
See Hood,
See Randel, 354 F2d at 501.
Id.
Id.
Id.
Id.
Cuyler v. Sullivan,
Fulminante,
Id.
See id.; Cuyler,