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Smith v. State

Supreme Court of Georgia

December 11, 2017



         Following the denial of his motion for new trial, as amended, Herman Smith appeals his convictions for felony murder while in the commission of aggravated assault, aggravated assault with a deadly weapon, two counts of possession of a firearm during the commission of a felony, and carrying a weapon without a license, all in connection with the fatal shooting of Cardarius Steagall and an assault upon Chaserah Horton. Smith challenges the trial court's refusal to grant a mistrial and two evidentiary rulings. Finding the challenges to be unavailing, we affirm.[1]

         1. Construed to support the verdicts, the evidence showed the following. On November 18, 2012, at approximately 2:30 a.m., police responded to a nightclub where they found Steagall dead on the floor. Next to the body, the officers discovered a .22 caliber revolver, with one empty shell casing and two live bullets in it. The spent shell casing was the final round in the cylinder, and the trigger would have to be pulled five times for the next live round to fire. Officers also recovered four .45 caliber shell casings and two .45 caliber bullets from the crime scene, and a third .45 caliber bullet from Steagall's body during the autopsy. The cause of death was determined to be three gunshot wounds to the neck, head, and chest, which were consistent with a large caliber gun being fired from some distance away.

         Later on the day of the shooting, investigators interviewed Smith, who admitted that he was at the nightclub when Steagall was shot. Smith also stated that he had used cocaine, a street drug he called "Molly, " and alcohol the previous night and that the whole night was a "blur." Smith said that he had heard a single gunshot and ran from the building. During a second interview on December 6, 2012, Smith claimed that Steagall had brandished a weapon, causing Smith to fire in self-defense.

         At trial, witnesses called by the State testified that Steagall was not holding a gun when he was shot. Horton testified that he was next to Steagall, that he heard three shots, that he thought for a moment that he had been shot, and that he saw Steagall fall and did not see him with a gun. Horton also testified that he made eye contact with the shooter, whom he positively identified as Smith, and saw him put the gun away. Witnesses called by Smith, however, testified that, at various times during the night, they had seen Steagall with a gun.

         Smith does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational trier of fact to find Smith guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Smith contends that the trial court erred by refusing to grant motions for mistrial he made during jury deliberations on the ground that notes from the jury showed that it was hopelessly deadlocked. Instead of declaring a mistrial, the trial court instructed the jury several times to continue deliberations, and the court eventually gave a modified Allen charge. See Allen v. United States, 164 U.S. 492 (17 S.Ct. 154, 41 LE 528) (1896). These actions, Smith complains, coerced a holdout juror into changing his or her vote. However, the trial court's determination of whether the jury was hopelessly deadlocked "will be reversed on appeal only for an abuse of . . . discretion, " Humphreys v. State, 287 Ga. 63, 78-79 (8) (b) (694 S.E.2d 316) (2010), and "[w]hether a verdict was reached as the result of coercion depends upon the totality of the circumstances." Sears v. State, 270 Ga. 834, 837 (1) (514 S.E.2d 426) (1999). Accordingly, we will now review the totality of the circumstances surrounding Smith's motions for mistrial and the trial court's actions during deliberations.

         Early in the jury's deliberations, which began at 1:30 p.m. on Monday, August 5, 2013, the jurors sent various notes to the trial court containing requests for certain exhibits and asking questions about the evidence and the law. These were followed late Monday afternoon and Tuesday by a number of notes from the jury regarding their deliberations. The first of these notes said, "What happens if the jury vote is at 11 guilty and one not guilty on count one and count two?"[2] At 6:00 p.m. that Monday, the jury was instructed to keep deliberating. About an hour later, the jury sent another note reading, "We are in stalemate on counts one and two. The vote is currently ten guilty two not guilty." Smith moved for a mistrial, and the State requested an Allen charge. The judge denied both, and the court went into recess for the night. The next morning, the jury returned at 9:00 a.m. and later wrote the following:

We continue to deliberate count one and count two. There are still ten guilty and two not guilty. One not guilty is reviewing the evidence, and one refuses to change her vote. The ten guilty votes agree to compromise for count one not guilty for a unanimous guilty verdict on count two. Would you like for us to continue to deliberate?[3]

         Smith again moved for a mistrial, and the State again requested an Allen charge. At 9:55 a.m., the judge denied both and instructed the jury to continue deliberating. A subsequent note from the jury stated, "We have continued to deliberate and review the evidence. There are still two not guilty votes on counts one and two. There is one not guilty that is still reviewing the evidence. The other not guilty will not waiver and has not and is not willing to review the evidence." Smith again moved for a mistrial, and the State requested that the alternate juror be substituted for the juror refusing to deliberate or, in the alternative, that an Allen charge be given. The judge denied these requests and, at 11:00 a.m., instructed the jurors to continue to deliberate. A later note from the jury read, "Are there suggestions from the Court on how to continue deliberations? We have still got the same dilemma." Smith, once more, requested a mistrial, which was denied.

         After lunch, the foreperson, at her request, was brought into the courtroom, and she stated, "We still have one that's continuing to read the evidence, but we have one juror that refuses to review the evidence, the indictment, the instructions. So I'm looking for guidance from the Court on how to get past that stalemate." In response to questions from the court, the foreperson stated that all 12 jurors had participated in the deliberations at the start and continued for a period of time. When the foreperson was excused, Smith moved for a mistrial, and the court denied it and instructed the jurors to resume their deliberations. The next note from the jury read, "Deliberations continue. Count one is guilty three, not guilty nine. Count two is guilty 11, not guilty one. The compromise during deliberation from foreperson was for each person to reconsider based on evidence. One juror continues to refuse to participate." Smith moved for a mistrial, noting that the jury had deliberated for close to ten hours, and the State requested an Allen charge. The judge denied both requests and instructed the jury to keep deliberating. Another note from the jury read, "The vote remains count one not guilty, nine[;] guilty, three. Count two 11 guilty, one not guilty." The court permitted the jury to take a break and resume their deliberations upon returning. Thereafter, the jury sent a note saying, "Deliberations continue. Current jury vote, count one, one guilty, 11 not guilty. Count two, 11 guilty, one not guilty. Each of the number one on both counts that are making the votes non-unanimous are visibly not willing to change their vote." Once again, Smith moved for a mistrial. The judge denied it and instructed the jury to keep deliberating.

         At 3:20 p.m., another note from the jury stated, "We have one guilty on count one willing to change their vote to not guilty if the juror that's voting not guilty on count two will change their vote to guilty. The juror with the not guilty remains unchanged. Suggestions?" The State again requested an Allen charge. The court decided not to give the pattern charge but, over Smith's objection, did administer an Allen-like charge drawn from ABA Standard for Criminal Justice 15-5.4 (3d ed. 1996) (formerly 15-4.4).[4] The jury subsequently sent a note requesting use of an empty room with similar dimensions to the crime scene for a re-enactment. After consulting with counsel for both parties, the trial court permitted the jurors to use the jury assembly room and granted their additional request for a tape measure. At 7:30 p.m., the jury returned its verdicts, confirmed by a jury poll, finding Smith not guilty of malice murder and one count of aggravated assault upon Horton, but guilty of the other charges. See footnote 1, supra.

         As this review demonstrates, the jury did not simply announce that it was "deadlocked." Rather, the jury reported its numerical division and the lack of continued participation by one juror, solicited suggestions and guidance from the court, and described its position with the terms "stalemate" and "dilemma." Even assuming that the jury had more strongly described itself as "hopelessly deadlocked" or some equivalent description, "the trial court was not bound by those pronouncements. On the contrary, the trial court, in the exercise of a sound discretion, was required to make its own determination as to whether further deliberations were in order." Sears, 270 Ga. at 838 (1). See also Porras v. State, 295 Ga. 412, 420 (3) (761 S.E.2d 6) (2014) (trial court's instructions were not "coercive simply because they compelled the jury to continue deliberating after it reported a deadlock"). That determination is a "sensitive" one "best made by the trial court that has observed the trial and the jury." Humphreys, 287 Ga. at 78 (8) (b). Factors in determining whether requiring further deliberations was coercive include the length of trial, the length of deliberations before the jury indicates that it is deadlocked, the language of the jury's notes, the progress of the jury, the language of the Allen charge and other instructions regarding deliberations, the length of additional deliberations after the alleged coercion, whether the jury found the defendant not guilty of any charges, and the polling of the jury.[5] See Drayton v. State, 297 Ga. 743, 749 (2) (b) (778 S.E.2d 179) (2015); Porras, 295 Ga. at 420 (3); Sharpe v. State, 288 Ga. 565, 568 (5) (707 S.E.2d 338) (2011); Humphreys, 287 Ga. at 79 (8) (b); Sears, 270 Ga. at 837-838 (1); Romine v. State, 256 Ga. 521, 525-526 (1) (c) (350 S.E.2d 446) (1986).

         In the case at bar, the trial lasted nearly a week, [6] and the jury deliberated only one afternoon before first indicating that it was in "stalemate." The jury was quite communicative, having submitted a number of questions to the court unrelated to deliberations, and the jury began regularly updating the court on the progress of its deliberations. The trial court learned, without inquiring of the jurors, that a majority of them were voting guilty on at least one murder count, but that circumstance does not demonstrate error "since the jury volunteered this information without prompting by the judge." Jones v. State, 273 Ga. 231, 234 (5) (539 S.E.2d 154) (2000). Nevertheless, it would have been much better for the trial court to tell the jurors to stop revealing the nature of their numerical division, as well as the content of their deliberations, and we again encourage trial judges "to inform jurors not to reveal that information." Sears, 270 Ga. at 838 (1), n. 1. After the jury first broached the subject of its numerical division late in the day on Monday, it repeatedly reported continuing progress, consisting of review of the evidence and shifting votes on the murder counts. Although the jury posed a question in hypothetical form late Monday ...

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