Court of Appeals Affirms Nurse’s Sexual Assault and Surveillance Convictions

In Serdula v. State, the Georgia Court of Appeals determined that the trial court did not abuse its discretion in denying the defendant’s request to recuse the judge from his case, as the evidence presented did not show that the district attorney played a significant role in any of the judge’s prior or recent campaigns.

In 2010, the defendant was indicted in Cobb County Superior Court for several offenses, including unlawful surveillance, sexual assault against a person in custody, aggravated sodomy, child molestation, and aggravated child molestation.

That same year, the trial judge, Reuben Green, was working as a prosecutor in the Cobb County District Attorney’s office. His boss, District Attorney Patrick Head, helped him with his campaign to become a judge. As a result, the defendant filed a motion to recuse Judge Green claiming that the judge had a “close relationship” with the Cobb County District Attorney that could influence him in the handling of the defendant’s case.

The judge denied the defendant’s motion to recuse and, in an earlier appeal, the case was subsequently remanded for an evidentiary hearing to determine the nature and scope of the relationship between the judge and district attorney, and the extent of the district attorney’s role in the judge’s campaign.

Hearing on Defendant’s Motion to Recuse

The hearing on the defendant’s motion to recuse was reassigned to Judge Larry Salmon. Head testified that prior to 2010 when the case was first indicted, Green was employed as an assistant district attorney in the Cobb County Judicial Circuit. Sometime between late 2009 and early 2010, Green approached Head and expressed his desire to run for an open seat on the State Court bench. Head stated that he agreed to serve as Green’s campaign treasurer.

Head agreed to serve as treasurer on the condition that he “didn’t have to do any work.” Green agreed to file the paperwork for him and only have Head sign when needed. Head recalled signing only two campaign disclosures, and only in reliance on “[w]hoever gave [him] the document[s] and said that [they] had been prepared correctly.” Head asserted that he thought this to be “pretty common.”

So, despite the filing of these campaign disclosures listing Head as the treasurer, Head maintained that he never had any idea of how Green kept track of his campaign’s money. Moreover, Head did not sign any checks, make any deposits, or even serve as an authorized user on the campaign’s bank account. Although he was officially named as the campaign treasurer, he “was not involved with any of Green’s campaign funds in any capacity.” Head believed that Green listed his name as campaign treasurer as a nominal expression of support, and nothing more.

However, Green’s State Court campaign was short-lived as he was appointed to the Superior Court bench by Governor Sonny Perdue. On October 21, 2010, Green terminated his campaign for State Court judge and filed a final report. Head testified that he was uninvolved for the entirety of this process, not speaking to Green once about the superior court appointment nor was he asked to make a recommendation on Green’s behalf to the Governor. Head testified that he did not consider Green to be a personal friend and they did not get together socially.

The Court of Appeals cited to the Georgia Supreme Court’s recent ruling in Post v. State where it was held that given the statutory provisions that dictate a campaign treasurer’s duties, it can be reasonably inferred that a judge’s existing campaign committee plays a key role in managing the campaign’s financial activities. Furthermore, the financing of the campaign may be critical to the judge’s ability to remain in office and, therefore, this inference is sufficient to warrant a transfer of the case to another judge for an evidentiary hearing. The Court noted that the defendant was afforded this hearing when the case was remanded after the first appeal.

The Court of Appeals concluded that based on Head’s testimony at the evidentiary hearing, the trial court did not abuse its discretion in denying the defendant’s motion to recuse. The Court found that the issue was fact-sensitive and that recusal was not required merely because of Head’s position as treasurer. The Court found that the trial court was authorized to find that Head “play[ed] no especially important role” in Green’s campaign and, as a result, recusal was not warranted.

Search Warrant for Defendant’s Cell Phone

The defendant, a nurse at various medical and dental facilities, was charged with secretly filming his female coworkers using the bathroom and sexually assaulting female patients while they were under anesthesia. He argued that the evidence obtained from his cell phone should have been suppressed as the search warrant did not satisfy the Fourth Amendment’s particularity requirement. Specifically, he argued that the search warrant was overly broad because it did not authorize a search of the removable memory card in the phone. He contended that the memory card was a “separate and distinct” component of the phone.

The Court noted that the level of specificity is flexible and varies according to the circumstances, but nevertheless the search warrant specified that the phone was to be searched for recorded files and videos, which are often stored on a memory card inside the phone.

The Court held that “a cell phone is ‘roughly analogous’ to a container that properly can be opened and searched for electronic data, similar to a traditional container that can be opened and searched for tangible objects of evidence.” Following this, the Court held that it is reasonable to assume that the object of the search will include a memory card inside the phone. In light of this, the Court ruled that the use of the phrase ‘electronic data’ is specific enough to authorize a search of the cell phone as well as any memory cards contained inside.

For these reasons, the defendant’s convictions were affirmed.