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GA Court of Appeals Reverses Drug Conviction for Judge’s Failure to Recuse

December 19, 2012

In Hargis v. State, the Georgia Court of Appeals held that the trial court improperly received ex parte communications from a co-defendant outside the presence of the defendant, requiring reversal.

As a result, the Court reversed the defendant’s conviction and ordered a new trial.

Anthony Hargis was convicted of attempt to manufacture methamphetamine, possession of ephedrine and pseudoephedrine, and obstruction in 2009.

Law enforcement first discovered evidence that Hargis was involved in the production of methamphetamine when officers executed a search warrant at the home he shared with co-defendant Karen Taylor. When Hargis did not appear at his trial scheduled to begin in February 2009, the judge issued a bench warrant for his arrest. Officers eventually tracked down Hargis’ truck near his home and arrested him for obstruction when he refused to give officers his license or his name. The officers then searched Hargis’ truck and located items commonly used in the production of methamphetamine. This evidence was then used to obtain another search warrant for Hargis’ house where additional evidence related to the production of meth was found. At trial, Hargis was found guilty of all charges and was sentenced as a recidivist to two consecutive life terms plus 20 years.

On appeal, Hargis argued that the trial court erred when it did not recuse itself after receiving ex parte information from Taylor’s attorney about Hargis’ alleged propensity for violence. During a hearing on Hargis’ motion for new trial, the prosecutor testified that before the trial began, Taylor’s attorney had spoken to the judge in chambers about Hargis outside his presence. The attorney had expressed “concerns” that Hargis may react violently upon discovering that Taylor had made recordings of her conversations with Hargis and with prosecutors. Hargis’ attorney testified that although he knew this communication had occurred, he did not know the substance of the communication. The attorney did not object or move to recuse the judge on the basis of this meeting.

Under the Georgia Code of Judicial Conduct, a judge is not allowed to consider such an ex parte communication. The Georgia Court of Appeals held that under the Code, Hargis did not waive his objection to the ex parte communication. The judicial duty to avoid these communications is so strong that judges are expected to disqualify themselves once their impartiality is threatened.

Additionally, the State was not able to show that the trial court’s error was harmless. The information about Hargis’ alleged propensity for violence was not cumulative as none of the charges against him involved violence. However, even if the information had been cumulative, the Court held that Hargis’ absence during this conversation robbed him of his right to cross-examine witnesses against him. As a result, the Court reversed Hargis’ conviction.

The Court also held that the trial court improperly denied Hargis’ motion to suppress evidence seized subsequent to his second arrest. Officers may execute a warrantless search of a vehicle when it is reasonable to suspect that evidence tied to the crime of arrest may be found inside. See Arizona v. Gant, 556 U.S. 332 (2009). Hargis, however, was only being arrested for obstruction after refusing to provide identification. It would not have been reasonable for the officer to believe that further evidence related to this crime could be found in the vehicle. Police may also search a vehicle incident to arrest to ensure the safety of the officers. Hargis was already in handcuffs when the officers searched his truck and thus posed no threat to the safety of the arresting officers. Thus, the Georgia Court of Appeals found the evidence obtained both from Hargis’ vehicle and in the subsequent search of his home should have been suppressed.

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