State v. Hargis

Asserting a disqualification in a motion for new trial before the same judge who is alleged to be disqualified without also asking the judge to recuse from hearing the motion for new trial, as was done here, is not a proper means of raising and preserving the issue.

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Anthony Hargis was tried by a Union County jury, and he was convicted of several crimes relating to the unlawful manufacture of methamphetamine. Following the denial of his motion for new trial, Hargis appealed, asserting seven claims of error, including that the trial judge was disqualified by her receipt of an ex parte communication and, therefore, should have recused, and that the trial court erred when it denied a motion to suppress evidence of a similar transaction. In Hargis v. State, 319 Ga. App. 432 735 SE2d 91 2012, the Court of Appeals agreed that the trial judge should have recused, it agreed that the motion to suppress should have been granted, and it reversed the judgment of conviction upon these grounds without reaching the other claims of error. On the petition of the State, we granted a writ of certiorari to review the decision of the Court of Appeals, and we now conclude that the Court of Appeals erred with respect to both recusal and the motion to suppress. Accordingly, we reverse the judgment of the Court of Appeals, and we remand for consideration of the remaining claims of error.

In September 2006, Hargis and Karen Taylor were indicted, and both were charged with a conspiracy to manufacture methamphetamine in a shed behind the home that they shared, criminal attempt to manufacture methamphetamine, and unlawful possession of ephedrine and pseudoephedrine. In addition, Hargis alone was charged with unlawful possession of false identification documents and forgery in the second degree. A trial was set for February 2009, and apparently around that time, Taylor met with her lawyer, Jeanne Davis. Also around that time, Taylor and Davis met with a prosecuting attorney. Unbeknownst to Davis and the prosecuting attorney, Taylor made audio recordings of these meetings with a recorder that Hargis had instructed her to use.

State v. Hargis

Asserting a disqualification in a motion for new trial before the same judge who is alleged to be disqualified without also asking the judge to recuse from hearing the motion for new trial, as was done here, is not a proper means of raising and preserving the issue.

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