In the Supreme Court of Georgia



                                             Decided: March 21, 2016


                        S15A1510. BATTLE v. THE STATE.


       NAHMIAS, Justice.

       Appellant Maurice Murray Battle was convicted of the malice murder of

Dipak Patel, the aggravated assault of Johnny Owens and Willie Griffin, and

other crimes in connection with an armed robbery of a convenience store.

Appellant contends that the evidence was legally insufficient to support his

convictions; that the trial judge erred in not recusing himself from the case after

learning of Appellant’s alleged plot to kill him; and that Appellant’s trial

counsel provided ineffective assistance by not filing a motion for recusal of the

trial judge. For the reasons that follow, we affirm.1

       1
          The robbery occurred on August 30, 2009. On April 6, 2010, a Bibb County grand jury
indicted Appellant, Rashard Harris, and Korey Stephens for malice murder, felony murder, armed
robbery, two counts of aggravated assault, and possession of a firearm during the commission of a
felony. On May 25, 2010, the State filed a notice of intent to seek the death penalty against
Appellant, which it withdrew on March 15, 2012. In July 2012, Harris pled guilty to armed robbery
and possession of a firearm during the commission of a crime; Stephens pled guilty to armed
robbery, aggravated assault, and possession of a firearm during the commission of a crime; and both
men agreed to testify against Appellant. At a trial from July 30 to August 2, 2012, the jury found
Appellant guilty of all charges. The trial court held a sentencing hearing on August 16 and on
August 22 sentenced Appellant to serve life in prison without the possibility of parole for malice
       1.      Viewed in the light most favorable to the verdicts, the evidence at

trial showed the following. On the night of August 30, 2009, Appellant and two

of his housemates, Rashard Harris and Korey Stephens, devised a plan to rob a

Chevron gas station and convenience store in Macon. Stephens drove, dropping

off Appellant and Harris near the store as manager Dipak Patel and clerk Wendy

Patterson were starting to close up for the night. Appellant and Harris entered

the store wearing bandanas, head coverings, and gloves to conceal their

identities, and Appellant, who was armed with a .22-caliber rifle, shouted that

this was a robbery. Harris went around behind the counter with a blue and black

book bag while Appellant held Patel, Patterson, and two customers, Johnny

Owens and Willie Griffin, at gunpoint.

       Harris initially had difficulty getting into the cash register, so Appellant,

who was giving all the orders, told Patterson to help Harris and then “announced

that this [isn’t] a regular robbery, this is a one eighty-seven” – slang for a


murder, life in prison for armed robbery, 20 years for each of the aggravated assaults, and five years
for the firearm charge, with all sentences to run consecutively; the felony murder verdict was vacated
by operation of law. On August 20, 2012, Appellant filed a premature motion for new trial, which
he amended with the assistance of new counsel on September 4, 2014. The trial court held an
evidentiary hearing on September 5, 2014, and denied Appellant’s motion on October 14, 2014.
Appellant filed a timely notice of appeal, and the case was docketed in this Court for the September
2015 term and submitted for decision on the briefs.

                                                  2
homicide. Harris stuffed money from the cash register, cigars, and cigarettes

into the book bag and ran out of the store to Stephens’s waiting car. Appellant

then fired a single shot at Patel, who was standing still with his hands above his

head, before running out after Harris. The bullet pierced Patel’s right lung and

heart, and he died shortly thereafter.

      Stephens drove Appellant and Harris home, where the men divvied up the

money from the cash register. Neilisa Waller, Stephens’s live-in girlfriend,

described the scene as follows:

      They pull a blue and black bookbag, brought it in the room, and
      poured the money and stuff on the bed. And all you hear is
      [Appellant] yelling I’m going to get my first teardrop, I’m going to
      get my first teardrop. . . . It means that you murdered someone.

      The robbery was depicted from multiple angles on the store’s video

surveillance system. Three days after the shooting, the police released portions

of the surveillance video to the media. Appellant and Harris began to worry

about getting caught, so they buried the rifle and book bag in woods near their

house. The police soon received anonymous tips from two people who

recognized Appellant and Harris from the video, and Appellant, Harris,

Stephens, and Waller were brought in for questioning. Harris and Stephens


                                         3
implicated themselves and Appellant in the robbery, but Appellant denied any

involvement. Waller also denied any involvement in the crimes but implicated

Appellant, Harris, and Stephens. The police arrested Appellant, Harris, and

Stephens.

      In a telephone call from the jail that was recorded, Appellant told Waller

where the rifle was hidden, and the police used this information to recover the

rifle and book bag that Appellant and Harris had buried in the woods. A GBI

firearms examiner testified that a spent cartridge case found at the crime scene

was fired from the rifle. At trial, the store surveillance video was played for the

jury, and Harris, Stephens, and Waller identified Appellant as the man shown

shooting Patel in the video. Patterson, Owens, and Griffin also testified at trial

but did not identify Appellant.

      Appellant contends that the evidence at trial was vague, ambiguous, and

conflicting, pointing to the jury’s requests during its deliberations that the store

surveillance video and recorded telephone call be replayed. However, “‘[i]t was

for the jury to determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence.’” Vega v. State, 285 Ga. 32, 33

(673 SE2d 223) (2009) (citation omitted). When viewed in the light most

                                         4
favorable to the verdicts, the evidence presented at trial and summarized above

was sufficient to authorize a rational jury to find Appellant guilty beyond a

reasonable doubt of the crimes for which he was convicted. See Jackson v.

Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). Accordingly,

we reject Appellant’s challenge to the sufficiency of the evidence.

      2.    Appellant’s other arguments all involve his assertion that the trial

judge should have recused himself from the case based on an alleged plot by

Appellant to kill the judge and several others involved with the case. We will

outline the facts relevant to these arguments before addressing their merits.

      The crimes occurred in August 2009. Prosecutors Sandra Matson and

Elizabeth Bobbitt of the Macon Judicial Circuit District Attorney’s Office were

assigned to the case, and Appellant was indicted in April 2010. In May 2010,

the State filed a notice of intent to seek the death penalty, and the case was

assigned to Judge Edgar W. Ennis, Jr. In July 2010, Brad Gardner of the

Georgia Capital Defender’s Office entered his appearance as lead counsel for

Appellant. Gardner had been an attorney since 2000, had served as defense

counsel in death penalty cases, and had tried more than 30 murder cases, 25 of

them as lead counsel.

                                       5
      On November 10, 2010, Judge Ennis held a preliminary status conference.

A few days later, Matson and Bobbitt told Gardner that the D.A.’s Office had

received information from an attorney for Frederick Edwards, an inmate housed

in the same cellblock as Appellant at the Bibb County Jail, related to an alleged

plot by Appellant to have five people associated with his case killed using

explosives – Judge Ennis, Matson, Bobbitt, the lead detective, and Waller.

Edwards told his attorney about the alleged plot and gave the attorney several

papers that he claimed Appellant had given him to send to Appellant’s mother

so that the plot could be carried out at a later date by people outside the jail. The

papers, which Edwards’s attorney turned over the D.A.’s Office, consisted of

handwritten sketches showing the location of the entrance to a private elevator

at the courthouse that goes directly to Matson’s and Bobbitt’s offices; a printout

of a picture of Waller; and what appeared to be “plans and orders of events

leading to the attack” with codes supposedly identifying the five targets.

      A police investigator interviewed Appellant, who denied Edwards’s

claims. After interviewing Edwards twice, interviewing two other inmates on

the same cellblock, and obtaining letters known to be written by Appellant,

Edwards, and one of the other inmates he interviewed, the investigator told

                                         6
Matson and Bobbitt that he would not feel comfortable testifying in court that

Appellant was actually plotting to have Judge Ennis and the others killed,

because all he really had was the word of one inmate accusing another inmate.

      In December 2010, the investigator sent the letters written by Appellant,

Edwards, and the other inmate to the GBI Crime Lab for handwriting

comparison to the papers that Edwards’s attorney had provided. On February

21, 2011, a GBI examiner reported that while there were some similarities

between the writing in Appellant’s letter and the papers from Edwards’s

attorney, he could not testify that the writing on the papers was Appellant’s; he

could, however, testify that the writing on the papers was not Edwards’s or the

other inmate’s. The investigator thought that with this new information, he had

enough evidence to seek arrest warrants against Appellant.

      On March 17, 2011, Appellant was arraigned on the indictment in this

case. A week later, the police investigator obtained arrest warrants against

Appellant for conspiracy to commit murder against Judge Ennis, Matson,

Bobbitt, and the lead detective in this case (but not Waller). After speaking with

the investigator and his supervisor, Gardner had the impression that they did not

think that the alleged plot was credible, and after researching the issue of

                                        7
recusal, discussing the matter with his co-counsel, and talking with Appellant,

Gardner made a strategic decision not to seek Judge Ennis’s recusal and instead

to seek to disqualify the District Attorney’s Office. Neither Gardner nor

Appellant had any concerns about Judge Ennis’s rulings or his impartiality.

Gardner was concerned, however, that the State would try to use the allegations

about the plot as non-statutory aggravating circumstances during the sentencing

phase of Appellant’s death penalty trial, and Matson and Bobbitt, two of the

targets of the alleged conspiracy, would be the persons standing in front of the

jury asking the jurors to sentence Appellant to death. Gardner sought the

disqualification of the entire D.A.’s Office, and not just Matson and Bobbitt,

because the decision to continue to seek the death penalty against Appellant was

totally within the discretion of the District Attorney, whose employees were

targets of the alleged plot and who had been in contact with the investigator

about the progress of the conspiracy investigation and whether or not the

investigator should seek arrest warrants.

      On June 15, 2011, the District Attorney’s Office decided to drop the




                                       8
conspiracy charges due to insufficient evidence.2 At a status conference in

August 2011, Gardner informed Judge Ennis that if the case moved forward as

a death penalty case, Appellant would be filing a motion to disqualify the D.A.’s

Office, and Appellant filed such a motion on November 3, 2011. At a status

conference on March 15, 2012, Matson informed the court that after the August

status conference, Gardner had given the State a copy of the motion to disqualify

the D.A.’s Office that he planned to file along with substantial discovery

regarding Appellant’s history of mental health issues. Matson said that after

reviewing the case and the new discovery, the State had agreed to withdraw its

notice of intent to seek the death penalty if Appellant withdrew his motion to

disqualify the D.A.’s Office. Gardner confirmed the agreement, noting that the

motion to disqualify was based on concerns regarding the sentencing phase of

the case as a death penalty case. After the status conference, Appellant filed a

motion to withdraw his motion to disqualify the D.A.’s Office, which Judge

Ennis granted, and the State then filed a notice of withdrawal of its notice to

seek the death penalty. Appellant’s trial started on July 30, 2012.



      2
          The record does not specify when the charges actually were dismissed.

                                               9
            (a)    Appellant contends that Judge Ennis erred in not recusing

himself from the case sua sponte when he learned about the alleged plot by

Appellant to have him killed. It is undisputed, however, that Appellant did not

file a timely motion to recuse the judge. See Post v. State, 298 Ga. 241, 243

(779 SE2d 624) (2015) (“To be timely, a recusal motion and accompanying

affidavit must be filed and presented to the judge ‘not later than five (5) days

after the affiant first learned of the alleged grounds’ for the judge’s recusal ‘and

not later than ten (10) days prior to the hearing or trial which is the subject of

[the] recusal.’ USCR 25.1.” (alteration in original)). Appellant knew about the

alleged plot by November 2010, but he waited until after he had been tried,

convicted, and sentenced to raise the recusal issue, which he first asserted in his

September 2014 amended motion for new trial. Under these circumstances,

Appellant forfeited the right to raise the sua sponte recusal issue on appeal. See

In re Adams, 292 Ga. 617, 617 (740 SE2d 134) (2013).

      As we explained in State v. Hargis, 294 Ga. 818 (756 SE2d 529) (2014):

      Even after [the defendant] learned of the grounds for the potential
      disqualification of the trial judge, he apparently decided to take his
      chances with the same judge . . . . That was his choice to make, but
      he could not do so and still preserve the disqualification issue for
      review in the appellate courts. To hold otherwise would be to

                                        10
       sanction gamesmanship. . . . The idea that a party could allow a
       judge whom the party believes to be disqualified to continue to
       preside over the case without objection, only later to urge the
       disqualification, is inconsistent with the principles of fair play and
       judicial economy that are embodied in the requirement that a
       motion to recuse be filed promptly.

Id. at 822-823 (citations omitted). See also GeorgiaCarry.org, Inc. v. Jones,

Case No. S15A1901, 2016 WL 369369, at *1-3 (Ga. Feb. 1, 2016).

               (b)     Moreover, even assuming that a trial judge’s failure to recuse

sua sponte could in some rare instances constitute reversible error even though

the parties knew of the grounds for recusal and did not seek the judge’s recusal

in a timely and proper way, there was no reversible error in this case.3 Absent

extraordinary circumstances, threats or plots by a criminal defendant against the

judge presiding over his case – even serious ones – do not mandate the judge’s

recusal. See In re Basciano, 542 F3d 950, 956 (2d Cir. 2008) (collecting cases).4

       3
          This Court’s holdings in cases like Adams and Hargis are in some tension with a line of
Court of Appeals decisions suggesting that appellate courts may in certain narrow circumstances
review a defendant’s claim that a trial judge committed reversible error by failing to recuse sua
sponte despite the absence of a timely recusal motion. See, e.g., Ellicott v. State, 320 Ga. App. 729,
734-735 (740 SE2d 716) (2013). Our alternative holding in this subdivision makes it unnecessary
to resolve that tension in this case. We also reiterate that holdings regarding a litigant’s legal right
to dispute a judge’s recusal decisions at trial or on appeal should not be viewed as diminishing the
judge’s ethical duty to recuse sua sponte anytime the judge becomes aware of facts requiring recusal.
See Gude v. State, 289 Ga. 46, 50 (709 SE2d 206) (2011).
       4
          The federal cases on this issue typically apply 28 USC § 455 (a), which requires federal
judges to disqualify themselves “in any proceeding in which [their] impartiality might reasonably

                                                  11
As the Ninth Circuit put it in United States v. Holland, 519 F3d 909 (9th Cir.

2008), if threats or plots of violence against judges ordinarily sufficed to require

recusal,

       defendants could readily manipulate the system, threatening every
       jurist assigned on the ‘wheel’ until the defendant gets a judge he
       preferred. Also, the defendant could force delays, perhaps making
       the cases against him more difficult to try, perhaps putting
       witnesses at greater risk. Such blatant manipulation would subvert
       our processes, undermine our notions of fair play and justice, and
       damage the public’s perception of the judiciary.

Id. at 915.

       In this case, as Judge Ennis explained in his order denying Appellant’s

motion for new trial, there was little to suggest that the alleged plot, if it existed

at all, was serious or actionable or that Judge Ennis ever thought that it was

realistic.5 It also appears that the D.A.’s Office and Appellant’s own trial

counsel (who had access to his client) concluded that the alleged plot, which was

investigated and resolved well before Appellant’s trial began, did not present a



be questioned.” This standard corresponds to the default recusal standard for Georgia judges found
in Canon 3 (E) (1) of the version of the Georgia Code of Judicial Conduct applicable at the time of
Appellant’s trial, as well as Rule 2.11 (A) of the revised version that took effect on January 1, 2016.
       5
        Indeed, it is unclear from the record when Judge Ennis learned of the alleged plot, although
Gardner assumed that the judge was aware of it early on and we may proceed on the same
assumption.

                                                 12
credible threat of harm to anyone. Under these circumstances, Judge Ennis

would not have been required to recuse even if a timely and proper recusal

motion based on the alleged plot against him had been filed. See United States

v. Yu-Leung, 51 F3d 1116, 1119-1120 (2d Cir. 1995) (holding that the trial

judge did not err in failing to recuse sua sponte where the judge “never made

any statements or any other indications that would suggest that he considered

the [defendant’s] death threats to be serious”).

      Appellant relies heavily on United States v. Greenspan, 26 F3d 1001 (10th

Cir. 1994), in which the Tenth Circuit held that the trial judge’s recusal was

required despite the lack of a formal recusal motion where the judge was made

aware after the defendant’s conviction but prior to his sentencing that the

defendant had contracted with third parties to kill the judge and his family. See

id. at 1005-1007. Greenspan is a clear outlier among cases dealing with recusal

based on threats against a judge by a criminal defendant, and its approach has

been questioned by other courts. See State v. Riordan, 209 P3d 773, 776 (N.M.

2009); Basciano, 542 F3d at 957 n.6. See also United States v. Cooley, 1 F3d

985, 993-994 (10th Cir. 1993) (recognizing that “threats or other attempts to

intimidate the judge” are matters that “will not ordinarily satisfy the

                                       13
requirements for disqualification”).

      In any event, Greenspan is factually distinguished from this case. The

record in Greenspan showed that: (1) the defendant in that case and several

others had engaged in a conspiracy across several states to kill the trial judge

and his family by contributing “large sums of money” to hire a “hitman”; (2) the

FBI investigated the threats, of which the trial judge was aware; and (3) after

learning of the threats, the judge expedited the defendant’s sentencing hearing

and refused to continue the hearing at the request of defendant’s new counsel,

who was appointed only two days before the sentencing date, in order to ensure

that the defendant would be moved to the federal penitentiary system where he

could be monitored more closely. Greenspan, 26 F3d at 1005. In light of the

judge’s knowledge of credible threats, his acceleration of the defendant’s

sentencing hearing, and his refusal to grant a continuance despite new counsel,

along with the government’s concession that “a reasonable person might have

questioned the judge’s impartiality,” the Tenth Circuit concluded that the

“totality of the circumstances . . . contributed to an appearance that the trial

court was prejudiced against [the defendant].” Id. at 1006.

      As explained above, in this case there is little to indicate that the alleged

                                       14
plot by Appellant to kill Judge Ennis was serious or credible or that Judge Ennis

believed that it was. Moreover, Appellant points to no allegedly improper

rulings by Judge Ennis that might have been motivated by bias resulting from

the threat. See Basciano, 542 F3d at 957. And the State does not concede that

the judge’s recusal was necessary. Accordingly, even if Greenspan was

correctly decided, Appellant is not entitled to a new trial.

             (c)   Finally, Appellant repackages his recusal claim as an

argument that his experienced lead trial counsel, Brad Gardner, provided

ineffective assistance by not filing a timely motion for Judge Ennis’s recusal

after learning about Appellant’s alleged plot to kill the judge and the prosecutors

assigned to the case. To prevail on this claim, Appellant must show that his

counsel’s performance was professionally deficient and that, but for the

deficiency, there is a reasonable probability that the outcome of the trial would

have been more favorable to him. See Strickland v. Washington, 466 U.S. 668,

687, 694 (104 SCt 2052, 80 LE2d 674) (1984); Long v. State, 287 Ga. 886, 891

(700 SE2d 399) (2010). Appellant’s claim does not satisfy either part of this

test.

        As discussed previously, Gardner spoke with the police investigator and

                                        15
his supervisor about the alleged plot by Appellant, and those discussions left

Gardner with the impression that they did not think that the plot was credible.

Gardner then researched the recusal issue, discussed the matter with co-counsel,

and spoke with Appellant, who denied the allegations, before making the

strategic decision not to seek Judge Ennis’s recusal and instead to seek to

disqualify the D.A.’s Office. “Counsel’s trial tactics and strategic decisions will

not support a claim for ineffective assistance unless they were so patently

unreasonable that no competent attorney would have chosen them.” Schutt v.

State, 292 Ga. 625, 627 (740 SE2d 163) (2013) (citation and punctuation

omitted).

      With both the death penalty and the new conspiracy-to-murder charges

against Appellant looming, Gardner moved to disqualify the D.A.’s Office in an

attempt to convince the State to withdraw its intent to seek the death penalty.

This strategy ultimately proved successful, and the death penalty notice and

motion to disqualify were both withdrawn. Gardner testified at the motion for

new trial hearing that he knew that he could move for Judge Ennis’s recusal but

made the deliberate, strategic decision not to do so because Judge Ennis had not

made any rulings that Gardner thought were improper, Appellant had not raised

                                        16
any concerns about Judge Ellis’s impartiality, Judge Ennis had not expressed

any concern about the alleged plot, and Gardner’s research suggested that a

recusal motion would likely fail.      Gardner also thought that, given the

overwhelming evidence of Appellant’s guilt, having a different judge preside

over the case would not result in a different outcome. In light of these

circumstances, Appellant has failed to show that Gardner’s strategic decision not

to file a timely motion seeking Judge’s Ennis’s recusal was patently

unreasonable, and Appellant therefore has failed to prove deficient performance.

      In addition, Appellant has not demonstrated that if a timely motion to

recuse Judge Ellis had been filed, there is a reasonable probability that the

outcome of the proceedings would have been more favorable to him. As

explained in the previous subdivision, Judge Ennis would not have been

required to recuse even if Gardner had filed a timely motion seeking his recusal.

Moreover, Gardner testified at the motion for new trial hearing that he did not

believe that Judge Ennis made any improper rulings at trial, and even now

Appellant points to no allegedly improper rulings that might have been

motivated by bias on the part of Judge Ennis. Furthermore, the jury had no

knowledge of the alleged plot, and the evidence of Appellant’s guilt was

                                       17
overwhelming. Accordingly, Appellant failed to prove Strickland prejudice.

     Judgment affirmed. All the Justices concur.




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