Leeks v. State, 296 Ga. 515

Background

On July 4, 2006 Carrie Leeks stabbed her husband during a domestic altercation; he later died of a chest wound. Leeks admitted in a videotaped statement that she stabbed him.
A Fulton County jury convicted Leeks of two counts of felony murder (predicated on aggravated assault and on possession of a knife during a felony), aggravated assault with a deadly weapon, and possession of a knife during a felony; the trial court sentenced her to life on one felony-murder count and merged the others.
During deliberations the jury sent five notes to the judge; the written record and trial transcript omitted discussion of the last two notes, prompting the State to seek supplementation of the transcript under OCGA § 5-6-41(f).
A post-trial hearing was held before a different judge (Judge Manis) who received testimony from prosecutors and counsel about the court’s customary practice; she supplemented the record to reflect that jury notes 4 and 5 were handled with counsel consulted (note 4 at a bench conference with Leeks in the courtroom but not at the bench; note 5 in open court).
Leeks raised multiple post-trial claims: (1) error in granting the State’s motion to supplement the record; (2) violation of her right to be present when jury note 4 was discussed; (3) faulty jury instructions on manslaughter and inadequate response to jury’s question about lesser included offenses; (4) ineffective assistance for counsel’s failure to object; (5) defective verdict form/entry instructions for lesser offenses; and (6) merger/sentencing errors.

Issues

Issue	Leeks' Argument	State's Argument	Held
Whether supplementation of the transcript was improper	Supplementation based on uncertain recollections undermines appellate review; presumption the conference did not occur off the record	OCGA § 5-6-41(f) allows a hearing to resolve deficiencies; trial judge’s factual findings are dispositive	Affirmed: trial court properly held a hearing and supplemented the record; its factual findings are final
Whether Leeks’ right to be present was violated when jury note 4 was discussed at the bench	She was in the courtroom but not at the bench; entitled to presence or an on-the-record waiver	Defendant need not be present for bench conferences about legal issues that would not benefit from her presence	Denied: no violation; defendant’s presence would not have meaningfully contributed
Whether jury instructions and the court’s response to jury note 4 failed to inform jurors manslaughter is a lesser included offense (plain error)	Charge and response were inadequate; court should have recharged and explicitly labeled manslaughter a lesser included offense	Manslaughter was properly charged; response referring jurors to the original charges was within discretion	Denied: no plain error; initial manslaughter instructions were adequate and referral was proper
Whether counsel was ineffective for not objecting to the court’s response to jury note 4	Failure to object was defective performance that affected outcome	No deficient performance because the court’s response was proper; no prejudice shown	Denied: no ineffective assistance because the response was lawful and not prejudicial
Whether the verdict form/instructions prevented the jury from returning lesser included verdicts	Preprinted guilty/not guilty boxes and lack of explicit lesser-included lines confused jurors and impaired deliberation	Verdict form had space to write in lesser verdicts and the court instructed jurors how to enter write-in lesser verdicts	Denied: form and instructions were adequate; jurors presumed to follow instructions
Whether merger and sentencing were correct	(Not raised by parties) sentencing merged counts appropriately	Court erred by vacating a felony-murder count by operation of law, which left an underlying possession offense unmerged and unsentenced	Partially reversed: judgment affirmed in part; sentence vacated in part and case remanded for resentencing to impose sentence for possession offense as appropriate

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
Nejad v. State, 286 Ga. 695 (trial court’s supplementation findings dispositive when transcript defective)
Lowery v. State, 282 Ga. 68 (defendant’s presence not required for conferences about legal matters not benefiting from defendant’s input)
Kendrick v. State, 290 Ga. 873 (jury charge must, as a whole, allow consideration of voluntary manslaughter)
White v. State, 291 Ga. 7 (plain-error review of jury charge and presumption jurors follow instructions)
Kimmel v. State, 261 Ga. 332 (court may refer jury back to charges instead of Q&A)
Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
Cowart v. State, 294 Ga. 333 (vacatur of duplicative felony-murder counts by operation of law)
Green v. State, 283 Ga. 126 (underlying felony merges into felony murder conviction)
Malcolm v. State, 263 Ga. 369 (once a felony-murder count is vacated, the underlying felony cannot merge into it)