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Hargis v. State

Pursuant to Georgia Code of Judicial Conduct Canon 3 E 1, the defendant's failure to move for recusal could not amount to a waiver of his argument that the trial court should have recused itself.

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On appeal from his conviction for attempt to manufacture methamphetamine, possession of ephedrine and pseudoephedrine, and other crimes, Anthony Hargis argues that the trial court erred when it denied his motion to suppress evidence seized pursuant to his July 2009 arrest after he failed to appear at trial originally scheduled for February 2009 and when it did not recuse itself after receiving an ex parte communication before trial from a co-defendant’s counsel about Hargis’s alleged propensity for violence. Because the trial court erred when it failed to recuse itself from the case after receiving the ex parte communication, we reverse Hargis’s conviction and order a new trial. Taking up the matter because it is likely to recur on retrial,1 we also conclude that the trial court erred when it denied Hargis’s motion to suppress the evidence seized in July 2009.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Citation omitted. Reese v. State, 270 Ga. App. 522, 523 607 SE2d 165 2004. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 III B 99 SC 2781, 61 LE2d 560 1979.

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