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Wallace v. State

Supreme Court of Georgia

February 5, 2018


          Peterson, Justice.

         Jamad Jacque Wallace appeals his convictions for murder and other crimes arising from the fatal shooting of Alex Delgado-Ramos ("Delgado") in a drug store parking lot.[1] Wallace argues on appeal that the trial court erred by (1) failing to conduct an adequate inquiry prior to replacing a holdout juror with an alternate, and (2) informing the jury that two witnesses were held in contempt for refusing to testify on behalf of the State. He also argues that his trial counsel was ineffective for failing to prepare adequately for cross-examination of the State's primary witness. To the extent that Wallace has preserved these claims for appellate review, we find that they lack merit and affirm his convictions.

         The State's primary witness was Delgado's girlfriend, Brittney Zevenbergen. According to her testimony, she and Delgado spent March 4, 2012, doing laundry, walking in a park, and shopping at Walmart. That evening, Delgado asked Zevenbergen to go with him to a CVS. Zevenbergen suspected that Delgado's plan was to purchase marijuana, as he smoked marijuana daily. Zevenbergen parked in the CVS parking lot, and Wallace got into the back seat. At some point, Zevenbergen heard Delgado say something like, "I thought you were cool[.]" Wallace pointed a handgun at Delgado's head and ordered him to empty his pockets; Zevenbergen tried to show Wallace the pockets were empty and insisted Delgado did not have a weapon. Wallace backed out of the car, still pointing his gun, and Delgado followed, despite Zevenbergen's attempts to pull him back. Zevenbergen heard more arguing and then two gunshots.

         Wallace fled the scene. Zevenbergen found Delgado lying on the ground and bleeding from the head. Delgado later died of the gunshot wound. In addition to the bullet that hit Delgado, a bullet landed in the side-step of a vehicle that had been parked next to Zevenbergen's.

          Wallace testified at trial, giving a version of events different from that relayed by Zevenbergen. According to Wallace, he and Delgado met earlier in the day on March 4 at a Kroger - at odds with the testimony of Zevenbergen, who said she and Delgado never went to a Kroger that day. Wallace claimed that he purchased a quarter of a pound of marijuana from Delgado, later realizing that the marijuana Delgado had sold him was not the quantity or quality it was supposed to be. Wallace said he and Delgado arranged to meet at the CVS; Wallace said he did not bring a gun or the marijuana but wanted to get his money back. Wallace claimed that he exited Zevenbergen's vehicle only after he heard what he thought was a gun being cocked. He claimed that Delgado came after him with his gun, the two men grabbed one another, and the gun discharged at a downward angle as Wallace pushed Delgado's hand away. Wallace said the gun went off again as the two continued to tussle, Wallace trying to turn the gun away from his own face.

         The medical examiner testified that the weapon was fired from a distance of at least 30 inches. She testified that there was no stippling on Delgado, which she would have expected to find if Delgado were holding the gun himself when he was shot.

          1. Although Wallace does not challenge the sufficiency of the evidence, it is our customary practice in murder cases to independently review the record to determine whether the evidence was legally sufficient. Having done so, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Wallace was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Wallace argues that the trial court erred by failing to conduct an adequate inquiry before it replaced a holdout juror with an alternate juror. To the extent Wallace did not affirmatively waive this claim, he has not shown that the trial court abused its discretion.

         The jury had deliberated for about nine hours (minus two lunch breaks) over two days when the jury foreperson sent a note to the trial court indicating that the jury had reached a verdict on three counts - felony murder, possession of a firearm by a first offender probationer, and possession of a firearm during the commission of a felony - but was at an impasse on the other four. With the agreement of the parties, the trial court gave a charge pursuant to Allen v. United States, 164 U.S. 492 (17 S.Ct. 154, 41 LE 528) (1896). Less than an hour later, the jury sent another note saying one "dissenting" juror did not want to deliberate further. The prosecutor indicated he would be in favor of taking a partial verdict. Defense counsel objected, asking the court instead to instruct the jurors that they all needed to participate in deliberations, then, "if that's still an issue, " replace the holdout juror with the alternate and begin deliberations anew. Questioned by the court, the foreperson reported that the holdout juror showed no openness to discussing the case. Defense counsel told the court that she did not want to question the juror lest the juror "feel ganged up on" and surrender her position. At defense counsel's urging, the trial court excused the holdout juror without further instruction or inquiry, with the understanding that deliberations would begin anew with the first alternate the following day. In excusing the remaining jurors for the day, the trial court indicated that the court already had spoken to the alternate juror and summoned him to rejoin the jury the following day.

         The following morning, before the alternate juror was brought into the courtroom with the rest of the jury, defense counsel told the trial court that she had received a voicemail from the released juror. Defense counsel stated that she had returned the dismissed juror's call but told the juror that she was not comfortable speaking to her and directed her to contact the trial court if she had any concerns.[2] Defense counsel asked the trial court to bring the juror back for questioning, adding that she might ask for a mistrial depending on what the dismissed juror said. The State objected to bringing the dismissed juror back, noting that the juror's perspective may have changed since being excused: "[T]here's a difference between questioning someone before they're excused and where their mindset is and questioning them after they've been excused[, ]" the prosecutor argued. In response, the trial court noted it had been prepared the previous day to take a partial verdict and declare a mistrial as to the remaining counts; defense counsel reiterated her objection to that course of action. The trial court rejected Wallace's request to recall the dismissed juror, concluding that "at this point in time it would not be appropriate to attempt to un-ring the bell." Less than two hours later, the newly-constituted jury convicted Wallace on all counts. The trial court subsequently announced that, before the holdout juror was replaced with the alternate, the jury had indicated that its agreement on the felony murder and firearm possession counts had been guilty verdicts on those counts.

         At the motion for new trial hearing, the dismissed juror said that she had participated in the deliberations that resulted in an agreement on some of the counts but things became "rough" when she would not agree on the other counts. She said she ultimately stopped talking during deliberations due to the hostility of other jurors, adding that if she said anything, "someone would probably like yell at me and throw papers." But the juror also affirmed that her mind would not have been changed. The trial court denied the motion for new trial, saying Wallace would have been convicted of "essentially" the same charges even if the dissenting juror had not been removed, as the court would have taken a partial verdict, including the guilty verdict on felony murder.

         Wallace complains on appeal that the trial court's decision to replace the holdout juror with an alternate was not preceded by sufficient inquiry. But Wallace urged the trial court to dismiss the holdout juror without questioning her first. Affirmative waiver, as opposed to mere forfeiture by failing to object, prevents reversal. See Adkins v. State, 301 Ga. 153, 156 (2) (800 S.E.2d 341) (2017); Cheddersingh v. State, 290 Ga. 680, 683-684 (2) (724 S.E.2d 366) (2012). We thus do not consider Wallace's argument that the trial court erred in dismissing the holdout juror and replacing her with an alternate. See Hicks v. State, 295 Ga. 268, 275 (2) (759 S.E.2d 509) (2014) ("[B]ecause appellant expressly told the trial court that it should not answer the [jury] question, appellant invited the alleged error, and it therefore provides no basis for reversal." (citation omitted)).

         The only argument on this point that Wallace did preserve is essentially an argument that the trial court erred the next day in refusing to reconsider its decision. It is not clear that he has properly asserted such an argument on appeal, however, as the enumeration of error set forth by Wallace does not mention the trial court's refusal to reconsider its decision but asserts only that the trial court "erred by failing to conduct an adequate inquiry prior to his decision to replace a 'lone hold-out' deliberating juror with an alternate juror." Although by his brief Wallace suggests that the trial court should have reconsidered, "an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of errors." Felix v. State, 271 Ga. 534, 539 n. 6 (523 S.E.2d 1) (1999). By the time Wallace asked the trial court to question the holdout juror, the trial court already had replaced that juror with an alternate.

          But even assuming that Wallace's argument that the trial court should have reconsidered is properly before us, we do not find a basis for reversal. OCGA § 15-12-172 authorizes a trial court to substitute the first alternate for an original juror if at any time "a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause[.]" We review a trial court's decision to substitute an ...

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