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White v. State

Supreme Court of Georgia

January 29, 2018

WHITE
v.
THE STATE.

          BOGGS, JUSTICE.

         Appellant 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.[1]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.

         1. 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.

         White 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.

         White 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).

         2. 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).

         3. 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).

         Just prior to the start of trial, following a hearing on a motion, the following colloquy took place between the court and White's counsel:

[Trial Counsel]: Your Honor, may I have my client seated with my assistant?
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 ...

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