New trial. DeKalb Superior Court. Before Judge Becker.
Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellant.
J. Tom Morgan, Axam Law, Tony L. Axam, Axam-Roberts Legal Group, Danielle P. Roberts, Cinque M. Axam, Clegg Daniels & Petrey, John H. Petrey, Alston & Bird, Bernard Taylor, Michael L. Brown, Kacy M. McCaffrey, for appellees.
RAY, Judge. Barnes, P. J., and McMillian, J., concur.
Nearly a year after a jury convicted Patricia Reid and Anthony Vincent Pope of various felonies, the trial court reversed the judgment of conviction and granted them new trials purportedly based upon the court's doubts as to the credibility of a State witness. The State argues on appeal that the trial court erred in granting the new trials. Under the unique circumstances presented in this case, we agree.
The pertinent case history is as follows. In July 2013, Reid, Pope, and co-defendant Crawford Lewis were indicted in the DeKalb County Superior Court for violating Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act [331 Ga.App. 276] (OCGA § 16-14-4) and for theft by taking (OCGA § 16-8-2) based upon their alleged joint conspiracy to redirect government contracts and misappropriate government property. Lewis was also charged under a separate indictment for obstructing an officer (OCGA § 16-10-24 (a)). In October 2013, Lewis pled guilty to a misdemeanor in the obstruction of an officer case in exchange for a probationary sentence, a fine, and community service. As a condition of his plea, Lewis agreed to testify truthfully against Reid and Pope in their joint trial. Lewis testified in the November 2013 trial, and the jury subsequently convicted both Reid and Pope of RICO violations and also found Reid guilty of theft by taking.
The trial court entered judgment on the verdict and held a sentencing hearing in December 2013, at which Reid was sentenced to twenty years, with fifteen years to be served in confinement, and Pope was sentenced to twenty years, with eight years to be served in confinement. Although the State maintained that Lewis satisfied his obligation to testify truthfully and requested that he be sentenced in accordance with the plea agreement, the trial court refused to do so. Without challenging the truthfulness of Lewis's testimony, the trial judge -- admittedly incensed by what she considered to be the " abhorrent" criminal conduct of all involved -- emphasized that Lewis was " a public official, this was on his watch, he stood by. And then he hindered and interfered with and tried to stop the completion of a rightful, lawful investigation." Consequently, she refused to impose upon Lewis a sentence " disproportionate" to that of his co-conspirators and instead sentenced him to 12 months in confinement.
Reid and Pope thereafter filed timely motions for new trials, but Pope later withdrew his motion and filed a notice of appeal. Meanwhile, in the obstruction case, Lewis filed a motion for an immediate hearing for reconsideration of his sentence. After conducting a hearing on the motion, the trial judge declined to reconsider the sentence, changed her rationale for refusing to consummate the previously agreed-upon plea deal, and stated for the first time that her rejection of Lewis's plea and the resultant sentence were based upon " the credibility, the believability, the probability or the improbability of [Lewis's] testimony[.]"
Lewis, now aligned with the State, appealed his case to this Court. See Lewis v. State, 330 Ga.App. 412, 767 S.E.2d 771 (767 S.E.2d 771) (2014). Although sympathetic to the trial court's plight given Lewis's criminal culpability, we nonetheless held that the court was bound to sentence Lewis in accordance with the terms of the plea agreement so long as his material testimony to the State's case against Reid and Pope was truthful. See id. at 413 (1). We remanded the case to the trial [331 Ga.App. 277] court to allow the judge to identify specifically the testimony she considered of questionable credibility, to determine whether that testimony was material to the prosecution, and to provide Lewis (and the State, on his behalf) an opportunity to respond.
See id. at 414 (2). In a footnote of the opinion, we noted that if the trial court ultimately concluded that Lewis did, in fact, testify untruthfully to material
aspects of the State's case, " such a finding may call into question the validity of [Reid and Pope's] convictions." (Citation omitted.) id. at 415 (2), n. 4.
On October 27, 2014, three days after our opinion in Lewis was rendered but before the remittitur was sent, the trial judge issued the instant order in which she identified those parts of Lewis's testimony that she considered lacking in credibility, deemed the testimony material, and held that she " [could not] presume that [the testimony] did not impact the jury's verdict as to [Reid and Pope]." She thereafter granted Reid's ...