Washington v. State

MCFADDEN, Judge,

dissenting.

If any text is due to be given its fair meaning, if any words require judges to confine themselves to objective meaning and refrain from searching for a more palatable subjective intent it is these: Not Guilty. The jury wrote those words, but the trial court disregarded them. We must reverse. We must direct the trial court to enter a judgment on that verdict of not guilty. I therefore respectfully dissent from the majority decision to remand the case to the trial court for further proceedings. I would remand only for retrial on the lesser included offense of voluntary manslaughter, on which the jury did hang.

The basis for the majority’s decision is that we cannot discern from the record when the trial judge saw the verdict form and that we therefore cannot determine if the trial court erred in denying the subsequent plea in bar. But the law required the trial court to review *252the verdict form before the clerk read it aloud. And we must presume that the trial court followed the law.

Moreover, even if we assume that the trial court erroneously failed to review the verdict form, such error would not alter the essential fact: the jury acquitted Washington of felony murder. The trial court’s subsequent declaration of a mistrial on that charge was a nullity. So the plea in bar was due to be granted.

The acquittal on felony murder does not, however, bar retrial of Washington on the lesser included offense of voluntary manslaughter. Accordingly, I would affirm the denial of a plea in bar as to voluntary manslaughter and reverse the denial of the plea in bar as to felony murder.

1. Felony murder.

In the absence of a showing to the contrary, the trial court is presumed to have followed the law. Lee v. State, 324 Ga. App. 28, 31 (1) (749 SE2d 32) (2013). With regard to viewing a jury verdict, the proper procedure is for the trial court and counsel to review the verdict prior to its publication in open court. State v. Freeman, 264 Ga. 276, 278 (444 SE2d 80) (1994). See also Ingram v. State, 290 Ga. 500, 503 (2) (722 SE2d 714) (2012) (trial court and counsel should review verdict before publication). There is nothing in the record to rebut the presumption that the trial judge reviewed the verdict before allowing the clerk to read it aloud in open court.

It is true that the record leaves some questions unanswered. We can confidently infer that the trial court failed to have counsel review the verdict. But the trial court — who, regrettably, took offense at the contention that she had erred in dealing with this unusual situation — declined to allow appellant’s counsel to clarify the record as to the trial court’s own review of the verdict. At the plea in bar hearing, Washington’s counsel stated that the trial court had in fact looked at the verdict and instructed that “part of the verdict not be read.” The trial court asked counsel to support that statement with the trial transcript, and counsel responded that he had a witness and subsequently offered to present testimony from the clerk of court to explain why the not guilty verdict on felony murder was not read aloud in court. The trial court, however, refused to allow the clerk to testify or to allow counsel to make any offer of proof. We note that “[W]here offer of proof is necessary it is error for the trial court to refuse an opportunity to counsel to state what he proposes to prove by the evidence offered.” Castell v. State, 252 Ga. 418, 419 (2) (314 SE2d 210) (1984) (punctuation omitted). But regardless of any error in refusing the proffer of evidence, there still is nothing in the record to indicate that the trial court did not discharge her legal duty to review the verdict before directing the clerk to read it. So the majority’s concern *253about when the judge actually saw the verdict is misplaced: in the absence of evidence to the contrary, we must presume that the trial court followed the law and reviewed the verdict form before the clerk read it aloud in open court.

The majority refuses to make this mandated legal presumption because it reasons that then “we must likewise presume that the trial court then elected not to follow the law that would have required the court to have the jury clarify its intent in light of the court’s prior communications with the jury” (Emphasis in original; footnote omitted). Again, the majority’s concern is misplaced because, contrary to its rationale, there was nothing to be clarified by the jury; its verdict was clear and unambiguous in finding Washington not guilty of felony murder, while being deadlocked as to the lesser included offense of voluntary manslaughter.

More fundamentally, even if we were not mandated by the record before us to presume that the trial court followed the law and reviewed the verdict, the timing of the trial court’s viewing of the verdict form does not alter the controlling plea in bar analysis.

[Jjeopardy attached when the jury was seated and sworn and . . . [Washington] was entitled to receive any verdict reached by that jury. Further, unless manifest necessity existed for granting a mistrial as to the counts decided by the jury, double jeopardy bars any retrial on those counts.

Bair v. State, 250 Ga. App. 226 (551 SE2d 84) (2001) (citations and punctuation omitted). Here, manifest necessity did not exist for granting a mistrial as to felony murder because the jury actually acquitted Washington of that offense.

The majority’s concern about pinpointing the moment of publication is similarly misplaced. The controlling law is long settled. “A verdict is not a verdict in law until received and published in open court. Where a jury agree on their verdict, write it out, have it signed by their foreman, and deliver it to the clerk, by the direction and in the presence of the judge, it is published.” Bell v. State, 163 Ga. App. 672, 674 (295 SE2d 147) (1982) (citations and punctuation omitted). Accord Merchants’ Bank of Macon v. Rawls, 7 Ga. 191, 200 (1849) (verdict considered published when it is handed to person directed by the court to receive it). In this case, the record shows that the jury returned its written verdict finding Washington not guilty of felony murder, had it signed by the foreperson, and delivered it to the bailiff and then the clerk at the direction and in the presence of the judge. Because the verdict was received and published in open court, it was a final verdict in law; and “once the jury reached its verdict in this *254case, and the same was presented to an officer of the court and the court, the trial had ended.” Maltbie v. State, 139 Ga. App. 342, 345 (2) (228 SE2d 368) (1976).

The majority mistakenly asserts that there is conflicting case law as to when a verdict is published, suggesting that it is incorrect to conclude that the jury here published its verdict when it delivered the verdict to the bailiff at the direction and in the presence of the judge. The word “publish” simply means “to make public.” Black’s Law Dictionary, Revised Fourth Edition. Our case law uses the word “publish” in two different, but not conflicting, ways. Some cases speak of a jury publishing its verdict by delivering it to the court. Others speak of the court publishing the jury’s verdict by having it read aloud by the clerk. The cases cited above, and which control our plea in bar analysis, refer to the jury publishing its verdict by delivering it to the court. Bell, supra; Merchant’s Bank, supra. See also Disby v. State, 238 Ga. 178, 179 (3) (231 SE2d 763) (1977) (discussing court letting “the jury publish its verdict” as to one count and finish its deliberations as to other count the next day). The cases cited by the majority refer not to the jury publishing its verdict, but to the publication of the verdict that occurs when it is subsequently read aloud by the clerk. See, e.g., Hannula v. Ramey, 177 Ga. App. 512, 513 (1) (339 SE2d 735) (1986). While the use of the word “publish” to describe both the jury’s delivery of its verdict to the court and the clerk’s reading aloud of that verdict may be confusing, it does not amount to a conflict in the law.

For purposes of our plea in bar analysis, the pertinent publication of the verdict, as discussed above, was the jury delivering its final, legal verdict to the court. It follows that the failure of the clerk to read aloud the portion of the final verdict finding Washington not guilty of felony murder, the trial court’s declaration of a mistrial as to that offense of which Washington had been acquitted, and the drawing of a line through the not guilty verdict on the verdict form were of no consequence. The trial court of course had the duty to insist on a legal verdict and could have rejected an ambiguous verdict. Ingram, supra. But because the verdict here was legal and contained no ambiguity, “[t]he trial court [and its clerk were] without authority to [ignore or alter the jury’s final verdict] .... [A] 11 actions occurring subsequent to the return of the jury’s original verdict were nugatory[.]” Douglas v. State, 206 Ga. App. 740, 742 (1) (426 SE2d 628) (1992). See also State v. Telenko, 225 Ga. App. 724, 726 (484 SE2d 725) (1997) (after trial had ended, court’s subsequent declaration of a mistrial was a “mere nullity”).

Moreover, “where the verdict was ... one of acquittal, this court [has] found that a new trial was precluded under the former jeopardy *255provisions of the bill of rights.” Douglas, supra (citation and punctuation omitted). Thus, in the instant case, because the verdict was one of acquittal for felony murder, a new trial is precluded and the plea in bar was erroneously denied.

[W]hen a defendant has been acquitted, he can not lawfully be again tried for the same offense. It necessarily follows that [Washington] cannot lawfully be retried for the same [felony murder] offense, the trial court having no authority to grant a mistrial as to proceedings that have previously terminated in a jury verdict of acquittal as to that offense. [Washington’s] plea of former jeopardy [should have been] sustained.

State v. Jorgensen, 181 Ga. App. 502, 503 (353 SE2d 9) (1987) (citations and punctuation omitted).

2. Lesser included offense of voluntary manslaughter.

Washington can be retried on the lesser included offense of voluntary manslaughter. He argues collateral estoppel, citing Roesser v. State, 294 Ga. 295 (751 SE2d 297) (2013). But in Roesser, the record revealed that the jury necessarily determined that the defendant acted in self-defense when it acquitted him of malice murder, felony murder and aggravated assault. Id. at 298-299. Consequently, the doctrine of collateral estoppel precluded relitigation of that issue, and because that issue of ultimate fact constituted a critical element of voluntary manslaughter, the Supreme Court concluded that “double jeopardy bar[red] the State from prosecuting [the defendant] again for voluntary manslaughter.” Id. at 300.

But in this case, unlike Roesser, the record does not reveal that Washington’s sole defense was justification and that the jury’s acquittal on felony murder necessitated a finding that he acted in self-defense. Here, the record shows that in addition to self-defense, Washington also sought to raise defenses of lack of causation and criminal intent. It was therefore possible for the jury to have acquitted Washington of felony murder without accepting his self-defense argument. Since the closing arguments of counsel were not transcribed, we must assume that Washington did in fact raise these additional defenses. See Burton v. State, 293 Ga. App. 822, 827 (2) (668 SE2d 306) (2008) (citations and punctuation omitted) (“It is the defendant’s duty on appeal to show error and harm affirmatively by the record. [Washington] cannot meet [his] burden without providing a transcript of closing arguments, and [this] enumeration of error must be rejected for this reason[.]”).

*256Decided July 16, 2015. The Hawk Firm, Jacque D. Hawk, for appellant. Ashley Wright, District Attorney, Joshua B. Smith, Natalie S. Paine, Assistant District Attorneys, for appellee.

Because the lesser included offense of voluntary manslaughter was properly before the jury and the jury was deadlocked as to that offense, “the acquittal on the indicted offense of [felony] murder would not bar retrial on the lesser included unindicted offense of voluntary manslaughter[.]” State v. Archie, 230 Ga. App. 253, 255 (495 SE2d 581) (1998).

3. Prior acts evidence.

Washington claims that the trial court erred in admitting evidence of prior bad acts. While he noted in his statement of facts that he objected to such evidence, in support of his enumeration of error, he has failed to identify precisely which evidence he now challenges or show how he was prejudiced by any such evidence. “It is not this [c]ourt’s job to cull the record on behalf of the [appellant] to find alleged errors.” Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012) (citation omitted). Moreover, we will not disturb a trial court’s determination that such evidence is admissible absent an abuse of discretion. Joiner v. State, 265 Ga. App. 395, 397 (2) (593 SE2d 936) (2004). Washington has failed to carry his burden of showing reversible error. See Gordon v. State, 327 Ga. App. 774, 781 (5) (a) (761 SE2d 169) (2014).

4. Severance.

We need not address Washington’s claim that his trial should have been severed from that of his co-defendant because such matter is not likely to recur on any retrial for voluntary manslaughter. Sales v. State, 296 Ga. 538, 541 (2) (b) (769 SE2d 374) (2015).

I am authorized to state that Presiding Judge Phipps joins in this dissent.