State v. Wakefield

751 S.E.2d 199, 324 Ga. App. 587
CourtCourt of Appeals of Georgia
DecidedNovember 8, 2013
DocketA13A1436; A13A1494; A13A1545; A13A1599, A13A1600; A13A1622, A13A1623
StatusPublished
Cited by15 cases

This text of 751 S.E.2d 199 (State v. Wakefield) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wakefield, 751 S.E.2d 199, 324 Ga. App. 587 (Ga. Ct. App. 2013).

Opinion

Branch, Judge.

These five appeals and two cross-appeals arise from revelations that in October 2008, Judge Paschal English had a sexual encounter with Kimberly Cornwell, a Griffin Judicial Circuit public defender who represented five defendants or their co-defendants1 at trial before Judge English in Fayette County Superior Court between November 2008 and March 2010. Judge English resigned from the bench on April 23, 2010.

All five defendants amended their timely motions for new trial to assert that the English-Cornwell relationship, and/or defendants’ lack of knowledge concerning it, violated the Code of Judicial Conduct and deprived defendants of their rights to due process, including conflict-free representation. In October 2012, the trial court granted new trials in all five cases after finding that the English-Cornwell affair had “continued throughout the trials” at issue, “requiring] voluntary recusal by Judge English,” and that Judge English’s failure to do so had violated the Code of Judicial Conduct and amounted to structural error. We affirm in the five direct appeals and dismiss the cross-appeals as moot.

When a trial court grants a new trial “ ‘on special grounds involving a question of law,’ ” O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009), quoting Govt. Employees Ins. Co. v. Progressive Cas. Ins. Co., 275 Ga. App. 872, 873-874 (1) (622 SE2d 92) (2005), we review the grant “de novo” and “reverse if the trial court committed legal error.” O’Neal, 285 Ga. at 363. Even in such circumstances, of course, we continue to “accept the trial court’s factual findings and credibility determinations unless clearly erroneous.” Suggs v. State, [588]*588272 Ga. 85, 88 (526 SE2d 347) (2000) (whether a defendant was deprived of his right to effective counsel is a “mixed question of law and fact”).

So viewed, the record shows that at a first hearing held on April 20, 2011, the State stipulated to the facts that on October 13, 2008, a Fayette County deputy observed and recorded Judge English and Cornwell in a parked car engaged in a sexual act.2 The deputy told the couple to “move on” and reported the matter to two other Fayette County officers but took no further action. The State also stipulated that Judge English was married at the time and remained so through his resignation and that Judge English had sought to transfer cases on which Cornwell was working to his courtroom, some of which were so transferred on September 22, 2009. A co-worker of Cornwell testified that in August 2009, she and Cornwell were attending a seminar on drug courts in Reno, Nevada, when Cornwell told her that Judge English was also present. The co-worker also testified that Judge English had consistently played an active role in the Griffin Judicial Circuit’s drug courts and maintained an interest in the subject.

At the same hearing, Cornwell’s counsel stated in his place that Cornwell would invoke her right against self-incrimination to any questions concerning the existence, concealment, or duration of her relationship with Judge English. Cornwell’s counsel stipulated, however, that none of Cornwell’s clients were made aware of either the relationship or any conflict that might have arisen from it. Likewise, Judge English’s counsel stated that the judge would invoke his right against self-incrimination as to the duration of his relationship with Cornwell. After an additional stipulation that the State Bar of Georgia had taken no disciplinary action against either Judge English or Cornwell, the State offered evidence showing that the sentences imposed in the five cases at issue were commensurate with others handed down between 1989 and 2010.

At a second hearing held on May 8, 2012, the parties stipulated to the content of an investigator’s report to the district attorney stating that the relationship between Judge English and Cornwell came to light as a result of a tip to the public defender’s office in 2009, and not as a result of any disclosure by the deputy who witnessed the October 2008 sexual encounter. The parties also stipulated that an independent investigation by the Georgia Public Defender Standards Council had found no evidence that any defendant had suffered any [589]*589actual prejudice as a result of the relationship between Judge English and Cornwell. Judge English’s former administrative assistant also filed an affidavit stating that she had no personal knowledge of any affair between the two; that Judge English usually made his own travel plans without her assistance; and that although he normally apprised her of his travel plans, he did not do so concerning the August 2009 drug court seminar in Reno.

On July 23, 2012, the first judge presiding over the motions for new trial recused himself because, having “heard unsolicited information” on the issue whether the English-Cornwell relationship existed at the time of each defendant’s representation, and having “shared that information with the [parties] and given both sides an opportunity for further investigation,” the judge now considered himself a “potential witness.” A second judge then invited additional briefing on the question whether the nondisclosure of the EnglishCornwell relationship amounted to “structural error” denying the defendants due process of law. After hearing argument, the second judge issued an order finding that as a matter of fact, the record included “subtle intimations” that the couple’s relationship had continued for some time after October 2008, including the following exchange at the March 2010 trial of defendant Nutt:

Court: Anything else, Ms. Cornwell?
Cornwell: Those are all the issues I have, judge.
Court: All right. On this trial, anyway, right?
Cornwell: Yes.
Court: All right.
Cornwell: Let’s limit it to that.
Court: I’m just kidding.

Based on the evidence before it, the second judge concluded that the couple’s “secret relationship continued throughout the trials of the other defendants now before this Court,” “requir[ing] voluntary recusal by Judge English,” and that his failure to recuse himself had violated the Code of Judicial Conduct and deprived each defendant of a fair trial.

1. The State attacks the trial court’s conclusion that the EnglishCornwell relationship continued throughout the period from October 2008 (when the couple was discovered by the Fayette County deputy) to March 2010 (when defendant Nutt’s trial was held) as “not supported by the objective facts before it.” Specifically, the State claims that in light of Judge English’s and Cornwell’s invocations of their privilege against self-incrimination, the record contains no evidence [590]*590of anything other than a single sexual encounter between the two occurring some weeks before the first of the trials at issue. We disagree.

As our Supreme Court has held, “[n]either [the State nor a criminal defendant] has the right to benefit” from any inferences a factfinder may draw “simply from [a] witness’s assertion of the privilege [against self-incrimination] either alone or in conjunction with questions that have been put to him.” Davis v. State, 255 Ga. 598, 604 (7) (340 SE2d 869) (1986); see also OCGA § 24-5-505

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Cite This Page — Counsel Stack

Bluebook (online)
751 S.E.2d 199, 324 Ga. App. 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wakefield-gactapp-2013.