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Howard v. State

Supreme Court of Georgia

October 7, 2019

HOWARD
v.
THE STATE.

          BOGGS, JUSTICE.

         Appellant Bahir Ramiz Howard was convicted of murder and related crimes for the 2010 shooting death of Jerode Martez Paige. He appeals, asserting error in several jury instructions and violation of his constitutional right to be present during his trial. For the reasons stated below, we affirm.[1]

         1. Construed in the light most favorable to the jury's verdicts, the evidence showed that Paige, a/k/a "Yung Hott," was filming a rap video in Griffin. One of the sites was located on the east side of Griffin, which witnesses testified is considered the territory of the Crips gang, which uses the color blue as an identifying mark. According to Leonard Taylor, the video producer and owner of Paige's record label, Paige was not a gang member, but his record label had a red color theme. The color red is an identifying mark of the Bloods gang, a rival of the Crips. During the filming, Taylor noticed that various individuals wearing blue had suddenly appeared on the scene, and Taylor expressed his concerns to Paige, who told him "everything is cool" because he had made arrangements to film there.[2] Taylor still felt uncomfortable and instructed the video crew to "shut it down" and resume filming on the other side of town. Paige walked over to a nearby truck to tell the owner where the filming would resume. Taylor saw Paige come back, limping, and fall as Taylor heard gunshots. A man came running after Paige, stood over him, and shot him in the head at close range, killing him. Multiple gunshots were fired thereafter.[3] Taylor identified Howard from a police photo lineup and in the courtroom as the shooter.

         Willie Hollis, who was at the video shoot with Paige, had walked with Paige to look for the truck's owner. He testified that Howard told Paige to "go and wrap it up. Get out from over there." Paige replied, "I'm on your side of town. What you want to do?" Howard said nothing more but "[p]ulled out a gun and started shooting." At that point, no other shots had been fired, but when Hollis heard more shots, he "took off running." Hollis identified Howard in a police photo lineup and in court as the shooter.

         Jaquonto Redding, Paige's half-brother, testified that he was standing some distance away when he saw Paige say something to Howard and turn around. Howard then pulled out a gun and shot Paige, who stumbled back and fell as Howard shot him again. Howard walked up to Paige, stood over him, and appeared to be trying to cock or clear his pistol. Redding then left the scene. Redding identified Howard from a police photo lineup and in court as the shooter. He testified that Howard shot first, and "then there was a lot of shots fired." Five individuals were struck, including Paige and Howard.

         Octavius White, a close friend of Paige, testified that he saw Howard and a group of men wearing blue bandannas speak with Paige, and then Howard pulled out a gun and shot Paige. He testified that Howard's was the first shot fired on the scene. Paige stumbled back and fell to the ground, "holding his hands up in the air like if he was saying don't shoot me, don't shoot me." Howard walked up to Paige lying on the ground and "just pulled the trigger." White identified Howard in court as the shooter.

         The medical examiner testified that Paige suffered multiple gunshot wounds to his lower extremities, including a wound to his right thigh that shattered the femur, which would have made it difficult for him to walk or run, and probably would have caused him to fall. Paige suffered a total of six gunshot wounds, including a bullet that entered near his right temple, passed through the brain and a portion of the brain stem, and lodged under the skin of his left cheekbone. This wound was "immediately lethal" and caused "instantaneous death." Given testimony that Paige was moving after he was shot, the medical examiner agreed that the gunshot wound to his temple could not have been the first wound he suffered. The bullet that lodged in Paige's head was removed by the medical examiner, and a firearms examiner identified it as a .40-caliber bullet "consistent with being fired from a Smith & Wesson .40 pistol."

         In addition, two other individuals picked Howard out of a photo lineup as the man who shot Paige, four other individuals identified Howard as one of the people firing a gun at the scene, and a gun shop owner testified that he sold Howard a Smith & Wesson .40-caliber pistol and that his shop carried Wolf brand .40-caliber ammunition. Howard told police that he did not know what happened to his pistol, and it was never found.

         Although Howard has not challenged the sufficiency of the evidence to support his convictions, as is this Court's practice in murder cases, we have reviewed the record to determine the legal sufficiency of the evidence. We conclude that the evidence summarized above was more than sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Howard was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); see also Strother v. State, 305 Ga. 838, 842 (2) (828 S.E.2d 327) (2019) ("It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient." (Citations and punctuation omitted).)

         2. In his first enumeration of error, Howard argues that the trial court erred in instructing the jury, after a juror was excused and replaced with an alternate, with the following charge:

THE COURT: Ladies and gentlemen, I have made the decision to excuse [Juror No. 22] from participation on the jury. So, ma'am, you will be excused shortly, and you will be free to go. [Juror No. 56], you will be taking her place on the jury. So you will go back into the jury room at this point. You all will need to kind of start fresh with your deliberations with [Juror No. 56] and get him caught up to speed. And sir, you catch them up to speed with your thoughts on this case also. Resume your deliberations at this time. With that, [Juror No. 22], do you have any personal items in the jury room?
JUROR [No. 22]: (Nods head affirmatively.)
THE COURT: Okay. You will be allowed to get those and then you will be free to go. And the rest of you, I will ask that you resume your deliberations with [Juror No. 56]. Thank you.

         As Howard acknowledges, he failed to object to this instruction at the time it was given, and thus must demonstrate plain error: that the error was not affirmatively waived; that it was obvious beyond reasonable dispute; that it likely affected the outcome of the proceedings; and that it seriously affected the fairness, integrity, or public reputation of the proceedings. See OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 32 (1) (718 S.E.2d 232) (2011). Howard has failed to meet this standard.

         Howard contends that the trial court's instruction, by using the terms "start fresh," "get him caught up to speed," "catch them up to speed," and "resume your deliberations," failed sufficiently to instruct the jury that it must begin its deliberations anew, thus placing the alternate in the position of being coerced to comply with the prior deliberations of the other jurors. This argument, however, is foreclosed by this Court's decision in Sharpe v. State, 288 Ga. 565, 569 (7) (707 S.E.2d 338) (2011), in which a very similar instruction was given to the jury, after the trial court told jurors "that it wanted them to deliberate more on the case" after a juror was replaced with an alternate. The trial court further instructed the jury:

When I told you to start fresh today, that was because I wanted you to have a fresh start and also you need to bring [the alternate] on board, too, since she has joined you rather late in the game and you need to bring her up to speed by going over where you've been before. And I trust that you've done that.

Id. This Court held that "starting deliberations anew . . . is exactly what the trial court, in essence, did instruct the reconstituted jury to do by bringing [the alternate] 'up to speed' after making a 'fresh start'." Id. at 570 (7). The remarkably similar language employed by the trial court here likewise instructed the jury to begin its deliberations anew, with the additional instruction that the alternate "catch them up to speed with [his] thoughts on this case also," thus militating against the possibility of coercion urged by Howard.[4]

         Relying almost exclusively upon decisions from a number of federal courts of appeal and several state courts, Howard contends that the substitution of an alternate juror without a clear instruction that the jury must start deliberating again from the very beginning had an "inherently coercive effect" and deprived Howard of a fairly constituted jury. But this argument overlooks important distinctions between the law applicable in those cases and the law of Georgia, particularly the fundamental difference between federal and Georgia criminal procedure on this point.

         The replacement of an incapacitated juror is governed in Georgia by OCGA § 15-12-172, which prescribes the method for substituting an alternate juror "at any time, whether before or after final submission of the case to the jury."[5] In stark contrast, before 1999, Rule 24 (c) of the Federal Rules of Criminal Procedure provided, in relevant part: "An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict."[6] The federal cases cited by Howard were decided under that former rule. See, e.g., United States v. Josefik, 753 F.2d 585, 587 (7th Cir. 1985); United States v. Lamb, 529 F.2d 1153 (9th Cir. 1975). But even under the former federal rule, the Eleventh Circuit explicitly declined to follow Lamb, preferring instead to interpret the former rule to permit substitution of an alternate juror even after the jury began deliberations, so long as the jury was "instructed to begin its deliberations anew." See United States v. Barker, 735 F.2d 1280, 1283 (11th Cir. 1984) (citing United States v. Phillips, 664 F.2d 971, 990-997 (II) (5th Cir. 1981)). The revised federal rule appears to have adopted that approach.

         Similarly, the state decisions cited by Howard rely upon statutory provisions similar to the post-1999 federal rule, explicitly requiring trial courts to instruct the jury to begin its deliberations anew. See, e.g., State v. Corne, 134 Wash.App. 1017 (2006) (affirming by unpublished per curiam opinion) (citing Washington Superior Court Criminal Rule 6.5 ("If the jury has commenced deliberations prior to replacement of an initial juror with an alternate juror, the jury shall be instructed to disregard all previous deliberations and begin deliberations anew")); State v. Gomez, 138 Idaho 31, 34 (56 P.3d 1281) (Idaho App. 2002) (citing Idaho Criminal Rule 24 (d) (2) ("If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew"), as well as the lengthy, specific jury instruction required by Idaho Criminal Jury Instruction 231). Georgia's statute governing the replacement of a juror with an alternate contains no such provision.

         The decisions cited by Howard therefore are inconsistent with Georgia's statutory scheme for alternate jurors as laid out in OCGA §§ 15-12-168 et seq., particularly the provision that the trial court may for good cause substitute an alternate "whether before or after final submission of the case to the jury." OCGA § 15-12-172. As this Court noted in Tanner v. State, 242 Ga. 437, ...


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