Lead Opinion
Hector Gibson was tried and found guilty by a jury of felony murder, armed robbery, and possession of a firearm during the commission of a crime relating to the shooting death of Vipin Patel.
1. Viewed in the light most favorable to the verdict, the record shows that on December 23, 2005, at approximately 7:00 a.m., Patrick Grant drove Anthony Haynes, Jonathan Johnson, Harry Newkirk, and Gibson to a Kwik Way store in a stolen Mitsubishi Montero. When the men arrived at the Kwik Way store, Johnson, Haynes, and Newkirk exited the vehicle and entered the store with the intent of committing a robbery. Three minutes later, Gibson also entered the store, where Patel was working as the clerk. One of the men ordered Patel to get down on the floor, but Patel pushed a panic button to alert police. Gibson shot Patel, who later died from a gunshot wound to the chest. The four men then ran to the vehicle where Grant was waiting, taking the cash register and cigarette boxes with them. As the men were leaving the store, Tony Maxwell, a frequent patron of the store, saw Newkirk and Haynes entering the Montero, but could not see the vehicle’s other occupants. Maxwell phoned 911 to report these observations, as well as the vehicle’s license plate number. Maxwell later identified Newkirk and Haynes as the two persons he observed leaving the store. The men sped away in the car, but soon ran out of gas. The men exited the car, scattering in different directions. Gibson and Johnson fled to a nearby cemetery, where Gibson disposed of the gun. Police recovered the cash register from a wooded area, a shell casing from the murder weapon in the store, Gibson’s fingerprints in the vehicle, and cash register tape and cigar casings near the vehicle. Gibson was not apprehended until December 28, 2005. Gibson then directed the police to the gun in the cemetery and a black pistol grip in Johnson’s home. Grant testified at trial that Gibson admitted to him that he shot Patel. This evidence was sufficient to enable a rational trier of fact to find Gibson guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia,
2. Gibson argues that, by referring to the appellate process in its answer to a question from jurors during deliberations, the trial court erred. See OCGA § 17-8-57. We agree.
The record shows that the jury, during deliberations, sent a note to the trial court stating, “We’d like to have all of the evidence. Have only exhibits through 72.” The trial court responded:
Let me tell you that you have all of the evidence, which by law, you are entitled to. There are several things that, if I give them to you, we would have to try the case all over again. . .. Some evidence is considered to be such that it’s disadvantageous for you to have it out with you, particularly in regard to statements and things like that. They are supposed to be read like any other testimony, and it would be reversible error for me to give you all the exhibits.
(Emphasis supplied.) These statements improperly referred to the availability of appellate review, thus intimating that Gibson was in fact guilty and would need to appeal his forthcoming conviction.
This Court addressed a similar statement in Faust v. State,
In the present case, the statements regarding potential error could have intimated to the jury that the requested exhibits were harmful to the defendant and that the trial court believed the defendant was guilty. This, in turn, may have caused undue focus on the exhibits being withheld and lessened the jury’s sense of responsibility for the verdict. The jurors are presumed to be intelligent people, and the trial court’s comments could have logically led them to the conclusion that “the trial court was telling them that after the trial had ended, defendant and his counsel would be cast in the role of ‘excepting’ to what had taken place during the trial — in other words, that they would lose the case and defendant would be convicted.” (Emphasis omitted.) Floyd v. State,
Although trial counsel failed to object to the trial court’s response during the trial, the objection was not waived since violations of OCGA § 17-8-57 are subject to plain error review. Thus, even though trial counsel failed to preserve the issue by objecting, review is still proper under the plain error rule, as it applies where the trial judge, in violation of OCGA § 17-8-57, has expressed or intimated an opinion as to the guilt of the accused. Brooks v. State,
To reach the opposite conclusion, the dissent argues that this Court should simply choose not to follow Faust, supra. In fact, the dissent goes so far as to say that this Court has simply chosen not to follow Faust in the past, despite the fact that it remains binding precedent. There is, however, no proof of the dissent’s overreaching assumption. As pointed out by the dissent, itself, this Court has cited Faust with approval in Walker v. State,
Judgment reversed.
Notes
On March 8, 2006, Gibson was indicted for malice murder, felony murder, armed robbery, and possession of a firearm during the commission of a crime. Gibson was found guilty on March 6, 2008 of felony murder, armed robbery, and possession of a firearm during the commission of a crime. On March 6, 2008, Gibson was sentenced to life plus five years. The trial court merged the armed robbery with the felony murder count for purposes of sentencing. Gibson filed a motion for new trial on March 7, 2008, and an amended motion on June 15, 2009. On April 27, 2010, the motion was denied. Gibson’s timely appeal was docketed in this Court to the September 2010 term and submitted for decision on the briefs.
Not all comments regarding reviewing courts are reversible error. Mere abstract references to appellate courts, which do not convey the trial court’s opinion, are not necessarily reversible error. However, the comments at issue here do not fall into that category.
Dissenting Opinion
dissenting.
Division 2 of the majority opinion extends Faust v. State,
1. Cases Before Faust
This is not a new issue for this Court. More than 150 years ago, the Court considered a claim that the trial court had erred in referring to the appellate process during its jury charge in a murder case. In Mitchell v. State,
The issue arose again in 1944 in the context of comments made by counsel for the State. See Bryant v. State,
2. Faust’s Dubious Reasoning
Then came Faust, the 1966 decision of this Court on which the majority exclusively relies and which was the basis of the Court of Appeals’ decisions cited by the majority. See Maj. Op. at 618-620. The Court first reversed Faust’s (and a related defendant’s) conviction based on an erroneous jury charge on witness credibility. See
So, Gentlemen, whatever your verdict may be, let it be stated in open court by your foreman after you have reached a verdict, because there are certain entries which cannot be removed from the indictment, and I am of the opinion it would be improper and maybe reversible error by the Appellate Court if I allowed you to see theindictment with these several entries hereon.
Id. at 28-29.
The Faust Court first explained that this charge could have conveyed to the jury the impression that the parts of the indictment that were referenced, but which the jury was not allowed to see, were unfavorable to the defendant. See id. at 29. But the Court went further, saying that advising the jury “as to possible reversal by the appellate court for allowing them to see the entries could have conveyed the impression that the court itself believed the defendant would be found guilty, since only the defendant can appeal from a verdict in a criminal case.” Id. The Court then noted the previous warnings against “reference to the reviewing courts by court or counsel, except to cite their decisions,” citing Mitchell and Bryant — the only authorities cited in the opinion — and concluded that the jury charge was reversible error.
The result of Division 2 in Faust may be correct, because the jury was told about material not in evidence that suggested additional criminal conduct by the defendant (the indictment being the document that charges a defendant with crimes). But the second part of the Court’s reasoning does not hold up to scrutiny. Mitchell and Bryant did warn trial courts against reference to appellate courts, but both cases nevertheless affirmed the convictions at issue; those decisions do not support the conclusion that such references are reversible error. Even more dubious is Faust’s assertion that the trial court’s reference to possible reversal by the appellate court “conveyed the impression that the court itself believed the defendant would be found guilty, since only the defendant can appeal from a verdict in a criminal case.” Id. Judges know that only the defendant can appeal the verdict in a criminal case, and most lawyers probably know it too (or at least learned it at some point during their legal education); and perhaps because judges spend so much of their time dealing with each other and with lawyers, judges may think that the everyday citizens who sit on juries know it too. But I doubt that jurors untrained in the law are focused on this feature of American double jeopardy law — which, by the way, was not so clearly the law in 1966 when Faust was decided. See Palko v. Connecticut, 302 U. S. 319, 328 (58 SC 149, 82 LE 288) (1937) (holding that the federal constitution’s double jeopardy and due process provisions do not preclude a state’s appeal of an acquittal based on substantial legal errors made during a criminal trial), overruled by Benton v. Maryland,
Moreover, we do not apply this assumption generally in criminal cases. If the rule that only defendants can appeal the verdict in a criminal case is something we can assume jurors already know, there would be no harm in trial courts or counsel saying it to juries. But to my knowledge, that is never done. Indeed, we might find explicit focus on this point in a criminal case, in a charge or argument for example, to be error, because it could improperly lessen the jury’s sense of responsibility for a guilty verdict (if jurors know their decision to convict will be “double-checked” on appeal, while their decision to set free the accused criminal will be final), or because it could promote jury nullification (if jurors know they can acquit without regard to the law or the facts because the State cannot appeal). See Watkins v. State,
Finally, even assuming the Faust assumption about juror knowledge of double jeopardy law could be sustained, the Court’s conclusion required another deductive leap. The trial court did not mention the defendant or directly state an opinion about her guilt; its statement could also be understood as an explanation that the court was acting to protect the jury’s verdict, whatever it may be.
In addition, if the Faust Court truly believed that the trial court’s charge expressed an opinion about the defendant’s guilt, then its previous (and defensible) discussion of the prejudice arising from the court’s reference to the indictment excerpts would be unnecessary, because a trial court’s intimation of an opinion about guilt in violation of OCGA § 17-8-57
3. This Court Has Not Followed Faust
As discussed by the majority, see Maj. Op. at 618-620, the Court of Appeals has followed Faust’s dubious logic in a few cases. But this Court has not, until today. In the past 45 years, this Court has cited Faust only once, in a decision that is inconsistent with the majority’s conclusion that a trial court’s reference to reversible error during a jury charge requires reversal. In Walker v. State,
Similarly, in Thomas v. State,
The majority may be trying to distinguish these cases when it says that “[m]ere abstract references to appellate courts, which do not convey the trial court’s opinion, are not necessarily reversible error.” Maj. Op. at 619 n. 2. But the majority gives no example of what that means, and the comments
4. This Case
Contrary to the majority’s conclusion, see Maj. Op. at 619, the first, more defensible part of Faust’s reasoning does not apply to this case. A trial court’s reference to portions of an indictment that were not shown to the jury conveys the impression that there exists additional, unfavorable information about the defendant, because indictments are generally not good for a defendant; indeed, the jury might speculate that the unseen excerpts are really bad, since “ ‘[w]hatever is unknown is magnified.’ ” Faust,
Between its references to re-trial and reversible error, the trial court explained to the jury that it was not going to provide all the evidence the jury had asked for because “[s]ome evidence is considered to be such that it’s disadvantageous for you to have it out with you, particularly in regard to statements and things like that. They are supposed to be read like any other testimony.” The majority asserts that the trial court’s use of the term “ ‘disadvantageous’ could have led the jury to believe that the exhibits [withheld] were actually disadvantageous or harmful to Gibson and any defenses he presented.” Maj. Op. at 619. In fact, the court said that the evidence was considered “disadvantageous for you” to have during deliberations — clearly referring to the jury, not to Gibson (or the State). Indeed, we cannot say that those exhibits were favorable or unfavorable to Gibson. The State did not ask to show them to the jury, nor did Gibson seek to have them withheld; it was the jury that asked for them, and we have no idea what role that evidence played in the jury’s deliberations and ultimate verdict.
In context, it appears that what the trial court was doing was trying to explain to the jury Georgia’s somewhat unusual continuing-witness rule as the legal reason for the court’s ruling on their reasonable request to have all of the exhibits in the jury room. See Davis v. State,
That leaves the majority’s conclusion dependent on the second part of Faust’s reasoning — the trial court’s reference to the appellate process — with all of its flaws discussed above, none of which the majority addresses. Those flaws are if anything magnified in this case, where there were references to reversible error and the possibility
Finally, if the majority were right that the trial court’s statements expressed its opinion about the defendant’s guilt, the majority’s discussion of harm and reversible error, see Maj. Op. at 619, is as irrelevant as it was in Faust. As the majority recognizes in the last paragraph of its opinion, reversal is mandatory when a judge intimates an opinion about the accused’s guilt in violation of OCGA § 17-8-57, without regard to objection at trial or analysis of harm.
5. Conclusion
The Court may need to reiterate that “it is better practice, during the trial of cases, for the court and counsel not to make references to the power of the reviewing courts except to cite their decisions as authority,” Bryant,
I do not believe that the trial court’s statements in this case intimated to the jury an opinion about the guilt of the accused, but instead simply explained that the court was trying to do its job of avoiding significant errors in the trial, and I do not believe that Gibson was otherwise prejudiced by the court’s comments. Because the other errors that Gibson enumerates also would not require reversal, I would affirm his convictions, and I therefore respectfully dissent.
I am authorized to state that Presiding Justice Carley joins in this dissent.
OCGA § 17-8-57 provides as follows:
It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.