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Washington v. State

Court of Appeals of Georgia

July 16, 2015

WASHINGTON
v.
THE STATE

Page 720

Double jeopardy. Richmond Superior Court. Before Judge Jolly.

Case remanded for further proceedings.

The Hawk Firm, Jacque D. Hawk, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Natalie S. Paine, Assistant District Attorneys, for appellee.

DILLARD, Judge. Ray, J., concurs. Ellington, P. J., and McMillian, J., concur in judgment only. Barnes, P. J., Phipps, P. J., and McFadden, J., dissent.

OPINION

Page 721

Dillard, Judge.

Following a trial by jury, Devin Washington was convicted of possessing a firearm during the commission of a felony and acquitted of malice murder. The trial court also declared a mistrial as to a charge against him for felony murder. On appeal, Washington argues, inter alia, that the trial court erred by declaring a mistrial as to the charge of felony murder and, accordingly, that double jeopardy bars a second prosecution such that the trial court should have granted his plea in bar. For the reasons set forth infra, we remand the case for further proceedings consistent with this opinion.

Viewed in the light most favorable to the verdict,[1] the record reflects that in the early morning hours on the day in question, Devin Washington and the victim, Preshawn Williams, arrived at an Augusta nightclub in a Jeep driven by Williams. At the same time, Marcus Washington (no relation to Devin)[2] arrived at the club in a Monte Carlo driven by an acquaintance and accompanied by Williams's cousin. When Marcus prepared to enter the club, he was suddenly attacked from behind by Devin, and the two continued to scuffle in the parking lot until the club's owner demanded that they leave the premises.

Marcus returned to the Monte Carlo and Devin returned to the Jeep, which was parked beside the Monte Carlo. Marcus demanded that the driver unlock the Monte Carlo so that he could get inside the vehicle, but she hesitated to do so and passed the keys to Williams's cousin. The cousin eventually unlocked the Monte Carlo and Marcus immediately retrieved a firearm from beneath the front-passenger seat. At that point, a gun battle erupted between Marcus and Devin (who, according to witnesses and Marcus, had been threatening to shoot if Marcus got into the Monte Carlo).[3] At some point, Williams, who had reentered the Jeep, was shot in the leg and head by two of Marcus's bullets, and he subsequently died as a result of the head injury.

Thereafter, Marcus and Devin were jointly indicted on charges of malice murder, felony murder, and possession of a firearm during the commission of a felony.[4] At the conclusion of the trial, the jury found both defendants not guilty of malice murder but guilty of possessing [333 Ga.App. 237] firearms during the commission of a felony. As to felony murder, the jury

Page 722

acquitted Marcus, but the trial court declared a mistrial as to Devin. Devin then filed a motion for new trial and a plea in bar as to felony murder. The trial court denied both, and Devin now appeals.

1. First, Devin contends that the trial court erred by declaring a mistrial as to felony murder when the verdict form reflects an acquittal on that charge, making a subsequent prosecution barred by double jeopardy. Thus, Devin contends that the trial court erred by denying his plea in bar. But because the state of the record is such that we cannot, at this time, conduct meaningful appellate review of these claims, we must remand to the trial court for additional findings of fact.

We begin by recognizing that the constitutional prohibition against double jeopardy was designed to " protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." [5] Indeed, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution[6] serves to " limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws." [7] Thus, after a jury is impaneled and sworn, " jeopardy attaches, and the defendant normally has a right to have [his] trial completed by that particular tribunal." [8] Accordingly, if a mistrial is declared without a defendant's consent or over his objection, " the defendant may be retried only if there was a 'manifest necessity' for the mistrial." [9] The [333 Ga.App. 238] entry of a mistrial, then, is examined under the " manifest necessity" standard established by the Supreme Court of the United States in United States v. Perez,[10] which the Supreme Court of Georgia has described as follows:

Page 723

The test to be applied by the trial court hearing a double jeopardy plea is that retrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end of public justice be defeated; the existence of " manifest necessity" is to be determined by weighing the defendant's right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.[11]

When there is no manifest necessity for " aborting a trial rather than using other less drastic remedies to cure problems, in the absence of defendant's motion for a mistrial, the granting of a mistrial is an abuse of discretion." [12] And on appeal, the standard of review of a grant or denial of a plea in bar is " whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion." [13] However, as will soon become clear, we currently lack the ability to review the trial court's decision to declare a mistrial and, likewise, its denial of Devin's plea in bar.

[333 Ga.App. 239] In pertinent part, the record reflects that both Marcus and Devin requested that the jury be instructed on voluntary manslaughter as a lesser-included offense of malice murder and felony murder, and the jurors were so charged. Then, after retiring to deliberate and requesting and receiving reinstruction as to the various offenses at issue, the jurors inquired as to whether they could " apply voluntary manslaughter instead of felony murder." In response, the court reinstructed the jurors that should they find a defendant not guilty of malice murder or felony murder, they would be authorized to determine whether he was guilty of the lesser-included offense of voluntary manslaughter.

A while later, the jurors sent out a second note indicating that they " [could] not reach a unanimous decision on Count 2 for both defendants." Because the trial court and the attorneys were unclear as to what this note meant (i.e., whether the jurors believed that they must reach the same verdict as to both defendants or whether they had reached a verdict as to one defendant but not the other), the court requested in writing that the jurors clarify their question. The jurors then asked, " [i]f we are unable to come to a unanimous decision on Count 2 for both defendants what are our options?" The court, still unclear as to the jury's exact issue, responded in writing as follows: " You have to make a decision as to each count 1 for (sic) each defendant independently. Have you reached a decision as to one defendant or are you undecided as to both?" The jurors responded that they were " not all in agreement on Count 2 for Devin Washington."

The trial court then struggled with this response by the jury, pondering

... [a]re they not in agreement as to the charge or as to the verdict? They are not in agreement. So are half [of] them going to voluntary [manslaughter] or other (sic) half going to felony murder or are they -- I mean I don't know how to get them to answer that. I guess what we should say -- but I mean we've got -- I mean are they -- if they are not in agreement as to the charge that's different than if they are not in agreement as to guilt or innocence.

Ultimately, the trial court decided to issue an Allen charge to the jury.[14] The court also

Page 724

decided to write back to the jurors, advising that they would " need to continue [their] deliberations."

[333 Ga.App. 240] Although the transcript gives no indication as to the timing, either concurrent with the aforementioned communication or after it, the trial court requested in writing that the jurors, " [w]ithout specifying which way [they] [were] leaning, ... provide a count (number) as to each defendant and each count and what the split is." This handwritten sheet submitted to the jury by the trial court referred to the various charges only by count number, not by the name of the charged offense; and in response, the jurors indicated that they were unanimous as to every count for the defendants except " Count 2" for Devin Washington, on which they were split eleven to one.

After receiving the Allen charge and again retiring to deliberate, the jurors sent another communication to inform the trial court that they had " exhausted all attempts to come to a unanimous decision on Count 2 for Devin Washington." At that point, the following colloquy took place on the record:

THE COURT: All right. Thank you we are back in session and everybody can be seated. I'll ask the foreperson while we're waiting on the verdict form. It is my understanding, based on the communication that you have made to the Court, that a unanimous verdict [h]as been reached on all counts with the exception of count 2 as to Devin Washington; is that correct?
FOREPERSON: That's correct.
THE COURT: And that -- to the -- who is the foreperson? And based on your communication you have written that y'all are hopelessly deadlocked to that count as to Devin Washington. Is that correct?
FOREPERSON: Yes.
THE COURT: You do not believe that any further deliberations would result in resolution of that count?
FOREPERSON: We -- nobody's budging.
THE COURT: All right. And so what I would need you to do -- we are going to take the verdict on all other counts. As to the count on Devin Washington that will be handled separately as to count 2. But I need for you to sign the verdict, make sure that's the verdict that y'all have agreed to for the other counts.
FOREPERSON: Yes. Do you need to know what exactly --
[333 Ga.App. 241] THE COURT: I'm going to ask for the verdict in just a second, but it has to be filled in and signed and dated by you as foreperson. And if y'all need to go -- if y'all need to go back out and complete some paperwork, that's fine.
I need to ask you some questions. Madame foreperson, can you stand where you are. Have you reached a verdict?
FOREPERSON: We have.
THE COURT: Was it unanimous as to all of the counts other than the ones that you have told me --
FOREPERSON: We have.
THE COURT: -- were deadlocked? Has the verdict form been filled in, signed, and dated by you.
FOREPERSON: It has.
THE COURT: Would you pass it to the bailiff, please.
THE CLERK: In the Superior Court of Richmond County in the case of the State of Georgia versus Marcus Washington and Devin Washington, indictment number 2012-RCCR-1600 for count 1, malice murder, we, the jury, find the defendant Marcus Washington not guilty. For count 1 malice murder, we, the jury, find the defendant Devin Washington, not guilty. For count 2, felony murder, we, the jury, find the defendant Marcus Washington not guilty. For count 3, possession of a firearm during the commission of a crime, we, the jury, find the defendant Marcus Antwan Washington guilty. For count 4, possession of a firearm during the commission of a crime, we, the jury, find the defendant Devin Washington guilty so found this 3rd day of May 2013, [(name of foreperson)], foreperson.
THE COURT: All right. Members of the jury I want to thank you for your service. This case has been tried exhaustively and you have heard and made a decision with regard to the evidence so

Page 725

your service is now concluded. I do need to ask do y'all wish to poll the jury as to counts 3 and 4?

Trial counsel for both Devin and Marcus declined to poll the jury on the verdict of guilt as to the possession-of-a-firearm counts.

Thereafter, the trial court gave the jurors final instructions as to their ability to now speak about the case and then discharged them from service. After all jurors had exited the courtroom, the trial court entered a mistrial as follows:

THE COURT: And for purposes of the record, based on the jury's inability to reach a verdict, I will declare a mistrial as to count 2 of the indictment as to Devin Washington.

[333 Ga.App. 242] There was no objection, and the proceedings concluded not long after this declaration was made by the court.

Several weeks later, after learning that the court was calling Devin for retrial on the felony-murder charge, his defense counsel filed a motion to bar the subsequent prosecution on grounds that the jury had found him not guilty on the felony-murder count and had only been unable to reach a unanimous verdict as to the lesser-included offense of voluntary manslaughter. In support of this contention, Devin pointed to the verdict form, which is included in the appellate record and shows that the jury foreperson wrote beside Count 2, felony murder as to Devin Washington, that the jury found him " not guilty." But below that line, the jury foreperson also wrote " voluntary manslaughter?" A line is drawn through these handwritten words and, beside them, " mistrial declared" is written in what appears to be different handwriting, along with the initials SBJ.[15] Devin attached as exhibits a copy of the verdict form and affidavits from three jurors, including the foreperson, who averred that the jury had been unanimous as to a not-guilty verdict on felony murder for Devin, but had been hung as to the lesser-included offense of voluntary manslaughter, and that no juror had struck through any words on the form or written " mistrial declared."

At a hearing on this motion, Devin's trial counsel suggested that he had not seen a copy of the verdict form until researching issues after trial and that the defense had been unaware that the jurors wrote " not guilty" as to the felony-murder count because the verdict form was never read aloud as written.[16] Specifically, counsel said:

Your honor, this particular case we were in the process of actually checking -- because of the conversation about them being hung up on voluntary manslaughter, we were checking to if (sic) we could file a double jeopardy motion and I went over to the courthouse and I found a copy of the verdict in the case.
When I found the copy of the verdict in the case it was clear on the verdict that the jury had wrote (sic) for count 2, felony murder, [" ]we, the jury, find the defendant, Devin Washington, not guilty,[" ] and that it had written voluntary manslaughter with a question mark underneath that. And if that being the case it then appeared that it had been struck [333 Ga.App. 243] through, the not guilty verdict, and that a mistrial had been written next to it and voluntary manslaughter with the question mark had been struck through as well.
...
Because of the earlier conversation I can understand after reviewing some of the record what [the] confusion was. The jurors had asked earlier in the case if they could consider the voluntary manslaughter for the felony murder count. I'm sure they were told they could. And then -- so they were asked about are they hung up on count 2 and they were hung up, but they were hung up on voluntary manslaughter. And ... they told they were hung up on count 2 and what they were referring to was the voluntary manslaughter because they had asked the question earlier and so when the clerk announced

Page 726

the -- the verdict as to felony murder it was never read into the record that they had -- the jury verdict at the time read not guilty of felony murder. Then when the jury -- when the jury verdict should have been read if it was read as written it would have said for count 2, felony murder, [" ]we, the jury, find the defendant, Devin Washington, not guilty.[" ] And then -- and then the Court, I think, announced a mistrial on that count.

Defense counsel then sought to present testimony by the clerk of court to purportedly testify that the trial judge had seen the verdict form prior to instructing her that Count 2 as to Devin should not be read into the record. Under these particular circumstances, trial counsel argued that it was inappropriate for the court to strike through the juror's handwritten words and declare a mistrial without first holding a hearing on the verdict form. Counsel also asked to call the jury foreperson and another juror, who he said had appeared voluntarily and were not under subpoena, to testify, but the State objected.

The State not only objected to former-juror testimony on the grounds of irrelevance to the verdict that was published in open court, but also because any contact with the jurors would have been in violation of a court order. The record reflects that on May 15, 2013 (not long after the jury rendered its verdict on May 3, 2013), the trial court filed an order " to seal all information regarding the identities of trial jurors" in the case against Marcus and Devin. The court then issued an order that same day sealing the contents of an envelope that contained the juror-information cards.

The trial court refused to allow any witness testimony or to allow a proffer as to what testimony Devin expected his witnesses to give, [333 Ga.App. 244] concluding that Devin's arguments presented purely legal issues.[17] And both the court and State agreed that, even if all twelve former jurors were brought into court and testified the same way (i.e., that they had found Devin not guilty as to felony murder but were deadlocked as to the lesser-included offense of manslaughter), their testimony would be irrelevant to the verdict as it had been published in court. Ultimately, the court denied Devin's motion, and this appeal follows.

To begin with, Devin does not contend that the trial court erred by disallowing the testimony or affidavits of jurors, but we nevertheless note that a juror may testify as to " whether there was a mistake in entering the verdict onto the verdict form." [18] And prior to the enactment of Georgia's new Evidence Code, there existed a codification of the common law that permitted jurors to give testimony sustaining, though not impeaching, the verdict that they reached.[19] We make no pronouncement today as to whether the common law in this regard has been displaced by the new Evidence Code.[20]

Page 727

Second, as discussed supra, the retrial of a criminal defendant after a mistrial caused by the inability of the jury to reach a verdict [333 Ga.App. 245] does not " constitute double jeopardy [when] there is [a] manifest necessity for declaring the mistrial." [21] Indeed, when a jury is " hopelessly deadlocked, this constitutes manifest necessity for declaring a mistrial." [22] And the determination of whether the jury is in fact hopelessly deadlocked is " a matter somewhat in the discretion of the trial court." [23]

But here, Devin takes issue with the trial court's declaration of a mistrial as to Count 2 of the indictment, felony murder, when, despite communications with the jury that indicated a deadlock as to Count 2 in general, the verdict form signed by the foreperson appears to show an acquittal for felony murder but indecision as to the lesser-included offense of voluntary manslaughter. Nevertheless, the record reflects that the clerk of court was instructed to skip Count 2 as to Devin when reading the verdict aloud and, after the jury was discharged, the court officially declared a mistrial as to that count. It is this sequence of events that gives rise to Devin's contention that the trial court should not have declared a mistrial as to Count 2 and that, accordingly, the trial court erred in denying his plea in bar when any subsequent prosecution for felony murder is barred by double jeopardy (because the verdict read into the record in open court did not match the verdict as recorded in writing by the jury foreperson).

Our Supreme Court has explained that the meaning of the word " verdict" is a " true saying." [24] And in Georgia, verdicts acquire their legality from return and publication.[25] Indeed, a verdict is only published when it is agreed upon by the jury, written out, signed by the jury foreperson, and delivered to the clerk, by the direction and in the presence of the judge.[26] Thus,

Page 728

consistent with its definition of [333 Ga.App. 246] " verdict," our Supreme Court has cautioned that " [a] verdict declaring contrary to the findings of the jury is not a true verdict" [27] and that to hold otherwise would be " to treat a solemn legal investigation as a game where victory may be won by inadvertence and methods that are worse." [28]

In the case sub judice, Devin essentially contends that what was entered into the record was not the jury's true verdict because the verdict form portends to reflect a decision that is contrary to what was read into the record by the clerk of court, at the trial court's direction, before the trial court declared a mistrial[29]--a contention and factual scenario that appear to be novel in our case law.

In seeking to review Devin's claim, we are mindful that a " defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict," [30] and that a trial court has a duty to " insist on a legal verdict, that is, a verdict responsive to the issues as framed [333 Ga.App. 247] by the indictment or accusation and the evidence, and specified in the trial court's charge to the jury." [31] Thus, the trial court has a duty not only to tell the jury what the law is, but to " insist that they apply it and either render a verdict on some issue submitted or else make a mistrial." [32] In this regard, our Supreme Court has instructed that " the proper procedure ... is for the trial court and counsel to review the verdict prior to its publication in open court," [33] and, when an improper verdict is rendered, the court should return the jury

Page 729

for further deliberations.[34]

But taking all of the foregoing into consideration, it is impossible to review for error the trial court's denial of Devin's plea in bar because the state of the record prohibits us from determining whether the trial court abused its discretion in declaring a mistrial. Indeed, we are unable to determine whether double jeopardy bars a subsequent prosecution for felony murder because we cannot discern from the appellate record at what point the trial judge saw the verdict form. Thus, we cannot determine whether the trial judge saw the form before or after deciding to declare a mistrial.[35] Likewise, we cannot [333 Ga.App. 248] discern whether, if the judge saw the form after the verdict was read into the record, it was before or after the jury had dispersed.[36] Additionally, although it appears by the handwritten initials that it was the trial judge who marked through the words written by the jury foreperson on the verdict form as to Count 2, and the State appears to concede this fact in its brief, this too is not entirely clear from the record. Thus, we have no choice but to remand this case to the trial

Page 730

court for another hearing on these issues,[37] which will need to be conducted by a judge other than the one who presided over the trial.[38]

Judge McFadden is untroubled by these unanswered questions, declaring first that we may presume that the trial court " followed the law" with regard to " viewing a jury verdict" because there " is nothing in the record to rebut the presumption that the trial judge reviewed [333 Ga.App. 249] the verdict before allowing the clerk to read it aloud in open court." While he may very well be correct that this is what occurred, the trouble -- and danger -- in this presumption is that it logically leads to another presumption: that the trial court saw the words " not guilty" and, notwithstanding its prior communications with the jury indicating deadlock, elected to flat out ignore those words. In other words, if we presume that the trial court followed the law that required the court to review the verdict prior to publication, we must likewise presume that the trial court then elected not to follow the law that would have required the court to have the jury clarify its intent in light of the court's prior communications with the jury.[39] Needless to say, with a record as murky as that in the case sub judice, making presumptions on factual scenarios with such serious legal implications is imprudent.

Judge McFadden continues, noting that, even if we could not make such a presumption, " the timing of the trial court's viewing of the verdict form" does not matter because there was no manifest necessity to declare a mistrial. But if the trial court did not see the written verdict form prior to its publication and the jury's dispersal, then the trial court's only clue as to the jury's decision with regard to Count 2 was that the jury had no decision on Count 2 because the foreperson had communicated to it that the jury could not reach a decision as to that count.

Finally, Judge McFadden dismisses our concern with determining the exact moment of publication. Although Judge McFadden, like the majority, correctly notes the law that a verdict is published when it is agreed upon by the jury, written out, signed by the jury foreperson, and delivered to the clerk, by the direction and in the presence of the judge, he nevertheless appears to conclude that publication occurred in this case at the instant when the verdict form was delivered " to the bailiff and then the clerk at the direction and in the presence of the judge." But the problem with this conclusion is that it ignores case law by this Court,[40] and by our Supreme Court,[41] that [333 Ga.App. 250] suggests the form must not only

Page 731

be delivered but read to constitute publication.[42] Indeed, Judge McFadden recently published an opinion, cited by the majority supra,[43] which reiterates this proposition and which relies upon prior authority from this Court.[44]

Given the significant gaps in the record before us, as well as the potentially conflicting areas of case law that might or might not apply depending upon the answers to the questions we propound above, this case is remanded for proceedings consistent with this opinion.

2. In addition to arguing that double jeopardy bars a subsequent prosecution for felony murder, Devin also contends that the State is collaterally estopped from prosecuting him a second time for voluntary manslaughter, that the trial court erred in allowing evidence of prior bad acts between Marcus and himself, and that the trial court erred in failing to grant his motion to sever his trial from that of Marcus. But given our decision to remand in Division 1, we decline to address these contentions at this time because the enumeration as to voluntary manslaughter is contingent upon the double-jeopardy claim,[45] and because judicial economy is best served by addressing at [333 Ga.App. 251] one time any other arguments that could result in a new trial.[46]

Case remanded for further proceedings.

Ray, J., concurs. Ellington, P. J., and McMillian, J., concur in judgment only. Barnes, P. J., Phipps, P. J., and McFadden, J., dissent.

DISSENT

Barnes, Presiding Judge, dissenting.

While I agree with most of the analysis and the result reached in Judge McFadden's dissent, I write only to emphasize that " it is not generally within the trial court's power to

Page 732

make inquiries into the jury's deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. [Cit.]" Dumas v. State, 266 Ga. 797, 799 (2) (471 S.E.2d 508) (1996). The jury verdict form in this case makes it clear that the jury determined that Washington was not guilty of felony murder. Moreover, even if the verdict could be construed as ambiguous, a " defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict ([cit.]) . ..." Lindsey v. State, 262 Ga. 665, 666 (1) (424 S.E.2d 616) (1993).

McFadden, Judge, dissenting.

If any text is due to be given its fair meaning, if any words require judges to confine themselves to objective meaning and refrain from searching for a more palatable subjective intent it is these: Not Guilty. The jury wrote those words, but the trial court disregarded them. We must reverse. We must direct the trial court to enter a judgment on that verdict of not guilty. I therefore respectfully dissent from the majority decision to remand the case to the trial court for further proceedings. I would remand only for retrial on the lesser included offense of voluntary manslaughter, on which the jury did hang.

The basis for the majority's decision is that we cannot discern from the record when the trial judge saw the verdict form and that we therefore cannot determine if the trial court erred in denying the subsequent plea in bar. But the law required the trial court to review [333 Ga.App. 252] the verdict form before the clerk read it aloud. And we must presume that the trial court followed the law.

Moreover, even if we assume that the trial court erroneously failed to review the verdict form, such error would not alter the essential fact: the jury acquitted Washington of felony murder. The trial court's subsequent declaration of a mistrial on that charge was a nullity. So the plea in bar was due to be granted.

The acquittal on felony murder does not, however, bar retrial of Washington on the lesser included offense of voluntary manslaughter. Accordingly, I would affirm the denial of a plea in bar as to voluntary manslaughter and reverse the denial of the plea in bar as to felony murder.

1. Felony murder.

In the absence of a showing to the contrary, the trial court is presumed to have followed the law. Lee v. State, 324 Ga.App. 28, 31 (1) (749 S.E.2d 32) (2013). With regard to viewing a jury verdict, the proper procedure is for the trial court and counsel to review the verdict prior to its publication in open court. State v. Freeman, 264 Ga. 276, 278 (444 S.E.2d 80) (1994). See also Ingram v. State, 290 Ga. 500, 503 (2) (722 S.E.2d 714) (2012) (trial court and counsel should review verdict before publication). There is nothing in the record to rebut the presumption that the trial judge reviewed the verdict before allowing the clerk to read it aloud in open court.

It is true that the record leaves some questions unanswered. We can confidently infer that the trial court failed to have counsel review the verdict. But the trial court -- who, regrettably, took offense at the contention that she had erred in dealing with this unusual situation -- declined to allow appellant's counsel to clarify the record as to the trial court's own review of the verdict. At the plea in bar hearing, Washington's counsel stated that the trial court had in fact looked at the verdict and instructed that " part of the verdict not be read." The trial court asked counsel to support that statement with the trial transcript, and counsel responded that he had a witness and subsequently offered to present testimony from the clerk of court to explain why the not guilty verdict on felony murder was not read aloud in court. The trial court, however, refused to allow the clerk to testify or to allow counsel to make any offer of proof. We note that " [W]here offer of proof is necessary it is error for the trial court to refuse an opportunity to counsel to state what he proposes to prove by the evidence offered." Castell v. State, 252 Ga. 418, 419 (2) (314 S.E.2d 210) (1984) (punctuation omitted). But regardless of any error in refusing the proffer of evidence, there still is nothing in the record to indicate that the trial court did not discharge her legal duty to review the verdict before directing the clerk to read it. So the

Page 733

majority's concern [333 Ga.App. 253] about when the judge actually saw the verdict is misplaced: in the absence of evidence to the contrary, we must presume that the trial court followed the law and reviewed the verdict form before the clerk read it aloud in open court.

The majority refuses to make this mandated legal presumption because it reasons that then " we must likewise presume that the trial court then elected not to follow the law that would have required the court to have the jury clarify its intent in light of the court's prior communications with the jury" (Emphasis in original; footnote omitted). Again, the majority's concern is misplaced because, contrary to its rationale, there was nothing to be clarified by the jury; its verdict was clear and unambiguous in finding Washington not guilty of felony murder, while being deadlocked as to the lesser included offense of voluntary manslaughter.

More fundamentally, even if we were not mandated by the record before us to presume that the trial court followed the law and reviewed the verdict, the timing of the trial court's viewing of the verdict form does not alter the controlling plea in bar analysis.

[J]eopardy attached when the jury was seated and sworn and ... [Washington] was entitled to receive any verdict reached by that jury. Further, unless manifest necessity existed for granting a mistrial as to the counts decided by the jury, double jeopardy bars any retrial on those counts.

Bair v. State, 250 Ga.App. 226 (551 S.E.2d 84) (2001) (citations and punctuation omitted). Here, manifest necessity did not exist for granting a mistrial as to felony murder because the jury actually acquitted Washington of that offense.

The majority's concern about pinpointing the moment of publication is similarly misplaced. The controlling law is long settled. " A verdict is not a verdict in law until received and published in open court. Where a jury agree on their verdict, write it out, have it signed by their foreman, and deliver it to the clerk, by the direction and in the presence of the judge, it is published." Bell v. State, 163 Ga.App. 672, 674 (295 S.E.2d 147) (1982) (citations and punctuation omitted). Accord Merchants' Bank of Macon v. Rawls, 7 Ga. 191, 200 (1849) (verdict considered published when it is handed to person directed by the court to receive it). In this case, the record shows that the jury returned its written verdict finding Washington not guilty of felony murder, had it signed by the foreperson, and delivered it to the bailiff and then the clerk at the direction and in the presence of the judge. Because the verdict was received and published in open court, it was a final verdict in law; and " once the jury reached its verdict in this [333 Ga.App. 254] case, and the same was presented to an officer of the court and the court, the trial had ended." Maltbie v. State, 139 Ga.App. 342, 345 (2) (228 S.E.2d 368) (1976).

The majority mistakenly asserts that there is conflicting case law as to when a verdict is published, suggesting that it is incorrect to conclude that the jury here published its verdict when it delivered the verdict to the bailiff at the direction and in the presence of the judge. The word " publish" simply means " to make public." Black's Law Dictionary, Revised Fourth Edition. Our case law uses the word " publish" in two different, but not conflicting, ways. Some cases speak of a jury publishing its verdict by delivering it to the court. Others speak of the court publishing the jury's verdict by having it read aloud by the clerk. The cases cited above, and which control our plea in bar analysis, refer to the jury publishing its verdict by delivering it to the court. Bell, supra; Merchant's Bank, supra. See also Disby v. State, 238 Ga. 178, 179 (3) (231 S.E.2d 763) (1977) (discussing court letting " the jury publish its verdict" as to one count and finish its deliberations as to other count the next day). The cases cited by the majority refer not to the jury publishing its verdict, but to the publication of the verdict that occurs when it is subsequently read aloud by the clerk. See, e.g., Hannula v. Ramey, 177 Ga.App. 512, 513 (1) (339 S.E.2d 735) (1986). While the use of the word " publish" to describe both the jury's delivery of its verdict to the court and the clerk's reading aloud of that verdict may be confusing, it does not amount to a conflict in the law.

For purposes of our plea in bar analysis, the pertinent publication of the verdict, as

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discussed above, was the jury delivering its final, legal verdict to the court. It follows that the failure of the clerk to read aloud the portion of the final verdict finding Washington not guilty of felony murder, the trial court's declaration of a mistrial as to that offense of which Washington had been acquitted, and the drawing of a line through the not guilty verdict on the verdict form were of no consequence. The trial court of course had the duty to insist on a legal verdict and could have rejected an ambiguous verdict. Ingram, supra. But because the verdict here was legal and contained no ambiguity, " [t]he trial court [and its clerk were] without authority to [ignore or alter the jury's final verdict] ... . [A]ll actions occurring subsequent to the return of the jury's original verdict were nugatory[.]" Douglas v. State, 206 Ga.App. 740, 742 (1) (426 S.E.2d 628) (1992). See also State v. Telenko, 225 Ga.App. 724, 726 (484 S.E.2d 725) (1997) (after trial had ended, court's subsequent declaration of a mistrial was a " mere nullity" ).

Moreover, " where the verdict was ... one of acquittal, this court [has] found that a new trial was precluded under the former jeopardy [333 Ga.App. 255] provisions of the bill of rights." Douglas, supra (citation and punctuation omitted). Thus, in the instant case, because the verdict was one of acquittal for felony murder, a new trial is precluded and the plea in bar was erroneously denied.

[W]hen a defendant has been acquitted, he can not lawfully be again tried for the same offense. It necessarily follows that [Washington] cannot lawfully be retried for the same [felony murder] offense, the trial court having no authority to grant a mistrial as to proceedings that have previously terminated in a jury verdict of acquittal as to that offense. [Washington's] plea of former jeopardy [should have been] sustained.

State v. Jorgensen, 181 Ga.App. 502, 503 (353 S.E.2d 9) (1987) (citations and punctuation omitted).

2. Lesser included offense of voluntary manslaughter.

Washington can be retried on the lesser included offense of voluntary manslaughter. He argues collateral estoppel, citing Roesser v. State, 294 Ga. 295 (751 S.E.2d 297) (2013). But in Roesser, the record revealed that the jury necessarily determined that the defendant acted in self-defense when it acquitted him of malice murder, felony murder and aggravated assault. Id. at 298-299. Consequently, the doctrine of collateral estoppel precluded relitigation of that issue, and because that issue of ultimate fact constituted a critical element of voluntary manslaughter, the Supreme Court concluded that " double jeopardy bar[red] the State from prosecuting [the defendant] again for voluntary manslaughter." Id. at 300.

But in this case, unlike Roesser, the record does not reveal that Washington's sole defense was justification and that the jury's acquittal on felony murder necessitated a finding that he acted in self-defense. Here, the record shows that in addition to self-defense, Washington also sought to raise defenses of lack of causation and criminal intent. It was therefore possible for the jury to have acquitted Washington of felony murder without accepting his self-defense argument. Since the closing arguments of counsel were not transcribed, we must assume that Washington did in fact raise these additional defenses. See Burton v. State, 293 Ga.App. 822, 827 (2) (668 S.E.2d 306) (2008) (citations and punctuation omitted) (" It is the defendant's duty on appeal to show error and harm affirmatively by the record. [Washington] cannot meet [his] burden without providing a transcript of closing arguments, and [this] enumeration of error must be rejected for this reason[.]" ).

[333 Ga.App. 256] Because the lesser included offense of voluntary manslaughter was properly before the jury and the jury was deadlocked as to that offense, " the acquittal on the indicted offense of [felony] murder would not bar retrial on the lesser included unindicted offense of voluntary manslaughter[.]" State v. Archie, 230 Ga.App. 253, 255 (495 S.E.2d 581) (1998).

3. Prior acts evidence.

Washington claims that the trial court erred in admitting evidence of prior bad acts.

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While he noted in his statement of facts that he objected to such evidence, in support of his enumeration of error, he has failed to identify precisely which evidence he now challenges or show how he was prejudiced by any such evidence. " It is not this [c]ourt's job to cull the record on behalf of the [appellant] to find alleged errors." Maxwell v. State, 290 Ga. 574, 575 (2) (722 S.E.2d 763) (2012) (citation omitted). Moreover, we will not disturb a trial court's determination that such evidence is admissible absent an abuse of discretion. Joiner v. State, 265 Ga.App. 395, 397 (2) (593 S.E.2d 936) (2004). Washington has failed to carry his burden of showing reversible error. See Gordon v. State, 327 Ga.App. 774, 781 (5) (a) (761 S.E.2d 169) (2014).

4. Severance.

We need not address Washington's claim that his trial should have been severed from that of his co-defendant because such matter is not likely to recur on any retrial for voluntary manslaughter. Sales v. State, 296 Ga. 538, 541 (2) (b) (769 S.E.2d 374) (2015).

I am authorized to state that Presiding Judge Phipps joins in this dissent.


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