Tracey Bernard White was tried before a jury and found guilty
of malice murder, felony murder, and possession of a firearm
during the commission of a crime in connection with the
shooting death of Larry Miller.He now appeals, asserting error in
the trial court's jury instruction on reasonable doubt,
and claiming that he was deprived of his constitutional right
to be effectively present at trial. For the following
reasons, we affirm.
Viewed in the light most favorable to the verdict, the
evidence showed that White suffered a bloody and swollen lip
when the victim and another man "jumped on [him]"
at a club one night. Witnesses testified that when they saw
White hours later, he was angry and told them he was
"going to get them." The next day, White went to
confront the victim. When he found the victim, the two argued
for a few moments, then White pulled out a gun and shot the
victim as the victim started to run away. As White walked
away from the scene, a bystander heard him say, "I told
y'all I was going to get y'all one by one." The
bullet struck the victim in the back, killing him. White
turned himself in later the same day.
testified at trial that he shot the victim because he was
scared and angry when, upon confronting him, the victim told
White that he was going to "finish him off" and
"reached in his pants like he had something." The
State presented evidence that some years earlier, White shot
another man in the back when the man refused to give him his
money back after White lost a poker game.
does not challenge the sufficiency of the evidence to sustain
his conviction. Nevertheless, as is this Court's practice
in murder cases, we have reviewed the evidence summarized
above and conclude that it was sufficient to authorize a
rational jury to find him guilty of the crimes for which he
was convicted beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
White contends that he was deprived of the right to a fair
trial because the trial court, in instructing the jury,
defined reasonable doubt as not meaning the possibility that
the defendant may be innocent. White is correct that the
language used by the trial court here was disapproved in
Coleman v. State, 271 Ga. 800, 804-805 (8) (523
S.E.2d 852) (1999). However, reversal is not required if,
when viewing the charge as a whole, the State's burden of
proof is adequately defined. Anderson v. State, 286
Ga. 57, 59 (5) (685 S.E.2d 716) (2009). Here, the court
instructed the jury on White's presumption of innocence,
that White had no burden of proof, and that the burden of
proof rested with the State to prove the allegations and
elements of the crime beyond a reasonable doubt. Moreover,
the instructions did not go out with the jury, and although
the jurors requested further instruction on the elements of
some of the crimes charged, they posed no questions with
regard to the State's burden of proof. We therefore
conclude that, viewing the charge as a whole, the jury
instruction did not mislead the jury as to the standard of
proof required by due process. Mangum v. State, 274
Ga. 573, 577 (3) (a) (555 S.E.2d 451) (2001).
White argues that he was deprived of his constitutional right
to be effectively present at trial because he was unable to
hear due to the poor acoustics in the courtroom.
"Violations of this due process right are presumed
prejudicial, and, absent a waiver by the defendant, require a
new trial." (Citation omitted.) Brewner v.
State, 302 Ga. 6, 9 (II) (804 S.E.2d 94) (2017).
prior to the start of trial, following a hearing on a motion,
the following colloquy took place between the court and
[Trial Counsel]: Your Honor, may I have my client seated with
The Court: I can't hear you.
[Trial Counsel]: May I have my client, who is seated over
there, move with my assistant so he can hear also?
The Court: I'm sorry?
[Trial Counsel]: May I have my client seated with my
assistant so he - -
The Court: No. No. I'll let you and your assistant move
anywhere you want but I'm not going to let ...