Appellant William Junior Lowery was found guilty of the malice murder of Maxine Harper and sentenced to life imprisonment. 1 On appeal he takes issue with the sufficiency of the evidence, the admission of testimony concerning a prior difficulty between appellant and the victim, the content of several jury instructions, and the trial court’s handling of a communication from the jury during its deliberations.
1. Maxine Harper, the mother of appellant’s child, suffered a fatal gunshot wound that entered her head through her right ear while she was in a pickup truck with appellant and Stacey Williams, her adult son by another man. Her body was found in the pickup truck which was parked on the shoulder of a road near her Worth County *69 home, and her cellular telephone and the Lorcin .25 caliber semiautomatic handgun that was established to be the murder weapon were found 1,519 feet from the body. The State presented evidence appellant had entered the victim’s home earlier in the evening by kicking the door in and announcing that his pickup truck had broken down. According to Williams, appellant argued with the victim and accused her of “going somewhere.” He then asked the victim and Williams to take him to his truck. The trio left in Williams’s pickup truck with Williams driving and following the directions appellant gave him from the passenger seat, and with the victim sitting between them. Williams testified that while he was driving he heard a loud click and a popping noise that caused his ears to ring, and his mother rested her head on his shoulder and did not speak again. Williams continued to drive until appellant told him to pull off the road. When Williams stopped his truck, he heard another clicking noise and appellant reached around the victim and made a threatening gesture at Williams, who exited his truck and ran off. He ran to the home of family friends to whom he reported that a man “had whipped” his mother. The friends accompanied Williams back to his pickup truck where several deputy sheriffs had responded to calls for emergency assistance. Williams told investigators he was the only one who had driven his truck that night, and he surrendered his keyring containing the truck’s ignition key to the lead investigator that night.
The State presented evidence of prior incidents in which appellant had reacted violently against the victim when he believed she had been seeing another man. A male friend of the victim testified that appellant had “busted in” to the victim’s home while the witness was visiting six months before the victim was killed, had complained about the victim having another man there, and had struck the victim with his fist, knocking her off the chair on which she sat and knocking her glasses off her head. Appellant’s cousin (and the victim’s sister-in-law) testified appellant had called her in January 1999 and told her he had tracked the victim to a local motel by entering her empty home and checking her telephone’s “Caller ID” feature where the local motel’s telephone number appeared. Appellant told his cousin he saw the victim leave a motel room in the company of another man and “if his gun had not jammed, he would have shot them both.”
The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of malice murder beyond a reasonable doubt.
Jackson v. Virginia,
2. Appellant contends the trial court erred when it admitted the testimony of his cousin recounting appellant’s 1999 statement that he would have shot the victim and her male companion had his gun not jammed.
*70 [E] vidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being tried.
Wall v. State,
3. Before the State presented its evidence of prior difficulties between appellant and the victim, the trial court instructed the jury that its consideration of the evidence was limited to “showing, if it does, the state of feeling between the defendant and the alleged victim and the motive and intent of the defendant or the alleged victim at the time of the incident alleged in the indictment.” Citing
Stephan v. State,
As stated earlier, evidence of prior difficulties between the defendant and the victim in the form of a defendant’s threats of violence against the victim is admissible as evidence of the relationship between the defendant and the victim, and is admissible for a very limited purpose: “[it] may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being [tried].”
Wall v. State,
supra,
4. Appellant next takes issue with several aspects of the trial court’s use of an
Allen
charge the trial court gave the jury upon being informed during their deliberations that they were deadlocked. See
Allen v. United States,
(a) Appellant maintains the charge was impermissibly coercive because it was legally inaccurate, it was given immediately after the trial court requested the numerical split of the jury, and because the length of deliberation following the charge was “disproportionately shorter” than the period of deliberation prior to the charge. “The issue in reviewing (an
Allen)
charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.”
Wright v. State,
Appellant points out that language in the
Allen
charge given by the trial court (“This case must be decided by a jury selected in the same manner in which this jury was selected, and there is no reason to think that a jury better qualified than you would ever be chosen”) has been deemed inaccurate by this Court and its further use discouraged.
Burchette v. State,
Finally, we need not address appellant’s effort to establish coercion by comparing the length of jury deliberations before and after the
Allen
charge was given. We have determined, as a matter of law, that the inaccurate language of the
Allen
charge did not make it coercive because the inaccurate language was “but one small portion of an otherwise balanced and fair
Allen
charge. . . .”
Burchette v. State,
supra,
(b) Appellant next argues the trial court erred when it failed to disclose to appellant and his counsel the contents of the jury communication reporting their deadlocked status prior to the trial court responding to the communication by giving the Allen charge. By a written note, the jury foreman informed the trial court, “We have a couple of people that says no way to change mind. What do we do?” The trial court notified counsel of receipt of a communication from the jury, but not the contents, and summoned counsel to the courtroom. The jury was brought in and the trial court engaged the jury foreman *73 in a series of questions (whether a verdict had been reached on any count (“no”); whether they had taken a vote (“yes, sir”); whether they had taken more than one vote (“possibly two, yes, sir”); the numerical division of the last vote (“10-2”); and whether it was the same as the first vote (“yes”)). The trial court announced it deemed further instruction necessary and gave the Allen charge. 4 After the completion of the charge and the jury’s retirement from the courtroom, the trial court informed trial counsel and appellant of the contents of the jury’s communication. Trial counsel voiced objection to the trial court’s action and asserts on appeal that appellant’s constitutional right to be present at all stages of the proceedings against him was violated and the trial court’s failure to consult with defense counsel prior to responding to the jury’s communication was an abuse of discretion and violated appellant’s constitutional right to assistance of counsel.
“Within the Georgia constitutional right to the courts [embodied in Article I, Section I, Paragraph XII of the Georgia Constitution] is a criminal defendant’s ‘right to be
present,
and see and hear,
all the proceedings
which are had against him on the trial before the Court.’ [Cit.]”
Hanifa v. State,
*74
(i) Appellant’s right to be present “attaches ‘at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure.’ [Cit.]”
Huff v. State,
(ii) A criminal defendant’s constitutional right to counsel attaches after the onset of formal prosecutorial proceedings
(Hicks v. State,
Our analysis does not end here, however, because even error of a constitutional magnitude, such as an abridgment of the Sixth Amendment right [to counsel], can be deemed harmless. “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California,386 U. S. 18 , 24 (87 SC 824, 17 LE2d 705) (1967).
Horne v. State,
In an exercise of this Court’s inherent power to maintain a court system capable of providing for the administration of justice in an orderly and efficient manner
(Garcia v. Miller,
Judgment affirmed.
Notes
The victim was killed on January 19, 2002, and a warrant for appellant’s arrest was issued on January 21, 2002. On October 15, a Worth County grand jury returned a true hill of indictment charging appellant with malice murder, felony murder (aggravated assault), and aggravated assault. Appellant’s trial commenced on November 18, 2003, and concluded on November 21, with the jury’s return of guilty verdicts on all counts. On November 26,2003, the trial court filed its sentence of life imprisonment on the malice murder conviction, after having vacated by operation of law the felony murder conviction and having merged the aggravated assault conviction into the murder conviction. Appellant’s motion for new trial was timely filed on December 8, 2003, and amended on November 29, 2004. The trial court conducted a hearing on the motion on November 3, 2005, and denied the motion on August 14, 2006. The notice of appeal was timely filed on September 11, 2006, and the appellate record was docketed in this Court on October 20. Oral argument was heard on February 13, 2007.
While the trial court misspoke when it stated that evidence of prior difficulties was always admissible (see
Wall v. State,
supra,
The change announced in
Burchette
is applicable to trials that take place after
Burchette
was decided. See
Widner v. State,
Prior to the jury communication that resulted in the delivery of the Allen charge, there had been two other communications from the deliberating jury. Shortly after deliberations began, the trial court and trial counsel discussed on the record the fact that the foreman of the deliberating jury had inquired of the bailiff (“Can we get the tape that they showed us in here?”) and, without making the trial court aware of the communication, the bailiff had responded by reminding the foreman, “Well, the judge in the instructions said all your evidence was coming up when we originally brought it.” After hearing the contents of the exchange, trial counsel ratified the bailiffs action and the trial court instructed the bailiff to have the jury put any further inquiries in writing and to deliver the written communication to “us.” Some time later, the trial court shared with defense counsel the jury’s inquiry whether they could take a break for smoking, and the trial court provided counsel with the court’s proposed response. The trial court sought defense counsel’s endorsement of the proposed response to the jury’s question, and trial counsel agreed with the trial court’s proposed action.
The appellate courts of several states and the United States Supreme Court have found fault with a trial court’s failure to make counsel aware of the contents of a jury communication on a substantive matter prior to responding to the communication. The decisions rendered by these courts are not grounded in principles of constitutional law but in the appellate court’s construction of a rule of criminal procedure or are an exercise of the court’s inherent authority
*74
to create rules for the orderly administration of justice in the lower courts supervised by the appellate court. See
Rogers v. United States,
Several decisions construing a state’s applicable rule of criminal procedure have noted the vital role counsel plays upon being advised of the contents of a deliberating jury’s substantive communication prior to a response being given. The Court of Appeals of New York noted that
ensuring] that counsel has the opportunity to be heard before the response is given... is essential to counsel’s ability to represent the client’s best interests and, further, to ensure the protection of the client’s constitutional and statutory rights at these critical postsubmission proceedings... [as] it is defense counsel who is best equipped and most motivated to evaluate the inquiry and proper responses in light of the defendant’s interests.
People v.
O’Rama, supra,