MANGUM v. THE STATE
S01A0592
Supreme Court of Georgia
DECIDED NOVEMBER 19, 2001
RECONSIDERATION DENIED DECEMBER 13, 2001
274 Ga. 573 | 555 SE2d 451
THOMPSON, Justice.
Therefore, although Ms. Butler‘s lawsuit is not barred by res judicata, she nevertheless does not have a viable damages claim against Mr. Turner based upon fraud and deceit. See Matthews Group & Assoc. v. Wages, supra at 153 (2). The judgment of the Court of Appeals should be affirmed.
I am authorized to state that Chief Justice Fletcher and Presiding Justice Sears join in this dissent.
DECIDED NOVEMBER 19, 2001 — RECONSIDERATION DENIED DECEMBER 13, 2001.
Banks, Stubbs, Neville & Cunat, Robert S. Stubbs III, Dana A. Azar, for appellant.
Browning & Tanksley, Thomas J. Browning, Carla F. Bright, for appellee.
David A. Webster, Ashley Carraway, Eric G. Kocher, Vicky O. Kimbrell, Nancy R. Lindbloom, Lisa J. Krisher, Phyllis J. Holmen, amici curiae.
S01A0592. MANGUM v. THE STATE. (555 SE2d 451)
THOMPSON, Justice.
A jury convicted Jason Mangum of the felony murder and armed robbery of Jerry Allen Clark and the armed robbery of Martha Jean Hollis.1 Because we conclude that Mangum was denied his Sixth
Rebecca Johnson, an acquaintance of Mangum, had information that the murder victim, Jerry Clark, would be coming to Georgia with a large sum of cash he had acquired from an insurance settlement. Clark and his companion, Martha Jean Hollis, were to be guests at Rebecca‘s apartment. Rebecca and Mangum made plans to rob Clark when he arrived in Atlanta, and they solicited the help of Rebecca‘s son, Wayne Johnson. On the day before the plot was to be carried out, Wayne told two friends that he and Mangum were planning to rob a man coming in from out of town.
Clark and Hollis arrived in Atlanta. While the two were alone in Rebecca‘s apartment, two young males entered. Both intruders wore Halloween-type masks (one wore a werewolf mask), and hooded sweatshirts. They encountered Hollis in the living room where they demanded her jewelry at gunpoint and asked the location of her companion. Hollis directed one of the perpetrators to a bedroom where Clark was resting. The intruder returned to the living room a few minutes later with Clark‘s money and then asked his accomplice if he should “waste” the couрle. At that point, Clark walked into the living room and ordered the two to get out of the apartment. The armed intruder turned toward Clark and fired the fatal shot. Clark died as a result of a single gunshot to the abdomen fired from a .380 pistol.
After the shooting, Mangum disclosed to his teenage girlfriend that he robbed and shot a man and shared the proceeds of the robbery with Rebecca Johnson. It was also established that Mangum owned a werewolf mask and a .380 pistol, the same caliber as the murder weapon. A comparison was made of the shell casing recovered from the crime scene with other shell casings known to have been fired from Mangum‘s pistol. Based on that information, a firearms examiner testified that the bullet fired at the crime scene had been fired from Mangum‘s pistol.
1. The evidence was sufficient to enable a rational trier of fact to find Mangum guilty beyond a reasonable doubt of the crimes for which he was conviсted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It follows that the court did not err in denying Mangum‘s motion for directed verdict of acquittal made at the conclusion of the State‘s case-in-chief, and renewed at the close of the evidence.
2. In a hearing conducted prior to the commencement of voir dire, trial counsel requested that the court order the production and in camera inspection of any juvenile court records which may pertain to certain State‘s witnesses, to ascertain whether those witnesses
In large part, the State‘s case-in-chief consisted of a series of juvenile witnesses, all of whom were acquaintances of Mangum‘s and could connect him to discussions with the Johnsons concerning the robbery, or could tie him to the murder weapon.4 Mangum submits that these witnesses had extensive juvenile records and likely pending cases, but that the defense was unable to expose bias or motive on the part of the witnesses based on the theory that they were subject to the criminal justice process at the same time they were assisting the police. With respect to two of those witnesses, the defense wаs able to elicit limited testimony on cross-examination concerning pending juvenile prosecutions, but only because the witness or the prosecutor opened the door to such inquiry.5
This Court recognized that Davis v. Alaska guarantees a defendant in a criminal trial “both the general right to cross-examine witnesses against him and the more specific right to cross-exаmine a key state‘s witness concerning pending criminal charges against the witness.” Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982). See also Baynes v. State, 218 Ga. App. 687 (4) (463 SE2d 144) (1995). Whether or not a “deal” has been made with the State is not crucial. Hines, supra.
What counts is whether the witness may be shading his testimony in an effort to please the prosecution. “A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud percеption.” [Cits.]
In the present case, the defense was thwarted in its attempts to discover information concerning juvenile records of the State‘s witnesses and to have the court conduct an in camera examination of those records to determine whether they could be used for purposes deemed appropriate in Davis v. Alaska. It was confirmed at trial that at least two of those witnesses had juvenile offenses pending at the time. When the court restriсted cross-examination based on the confidentiality of juvenile records and disallowed any inquiry into pending criminal charges against the witness in an effort to attack credibility “directed toward revealing possible biases, prejudices, or ulterior motives,” Hines, supra at 260 (2), the rule in Davis v. Alaska
We cannot agree with the State‘s assertion that any error in the court‘s ruling was harmless. A violation of the
Mangum‘s conviction was based largely on circumstantial evidence, or hearsay testimony elicited from the juvenile witnesses. With respect to at least five prosecution witnesses, Mangum was denied the right “to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U. S. at 318. The State has not demonstrated that the limitation on Mangum‘s
3. Mangum challenges several aspects of the jury instruction which merit discussion.
(a) Citing Coleman v. State, 271 Ga. 800 (8) (523 SE2d 852) (1999), Mangum asserts that an erroneous jury instruction relating to the definition of reasonable doubt violated his state and federal due process rights. Within the pattern instructions on reasonable doubt, thе trial court added the gratuitous language, “neither does [reasonable doubt] mean a possibility that the defendant may be innocent.” In Coleman we considered the identical charge and we overruled a long line of cases which had previously approved the extraneous language.6 Nonetheless, in considering the charge as a whole, we found no reasonable likelihood that the jury applied a standard of proof less stringent than that required by due рrocess.
While we recognize that Mangum‘s 1995 trial predated Coleman, and that the charging error is not likely to recur on retrial, we nevertheless recognize that the problem persists. See Bernoudy v. State, 245 Ga. App. 489 (2) (538 SE2d 150) (2000); Cowan v. State, 243 Ga. App. 388 (7) (531 SE2d 785) (2000). Thus, we restate our admonition in Coleman.
(b) Prior to the commencement of deliberations, the court instructed the jury on the requirements of unanimity, adding: “if you cannot unanimously agree on a verdict, the judge is required by law to declare a mistrial and retry the case before another jury.” In Harris v. State, 263 Ga. 526, 528 (6) (435 SE2d 669) (1993), we cautioned that “[a]lthough a predeliberation charge on unanimity is proper, informing the jury in such a charge of the consequences of a failure to achieve unanimity is disapproved.” Likewise, we hold that the challenged instruction in this case was certainly premature and an inaccurate statement of the law in a circumstance where the State elects not to pursue a retrial following mistrial resulting from a hung jury.
(c) A charge on the law of conspiracy was authorized by the evidence, as was a charge on admissibility of co-conspirators’ hearsay declarations. “A conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances.” (Citation and punctuation omitted.) Washington v. State, 268 Ga. 598, 601 (6) (492 SE2d 197) (1997). The trial evidence established that Mangum and the Jоhnsons plotted to perpetrate an armed robbery against the victims; that Mangum and Wayne Johnson acted in furtherance of that plan by entering the residence and robbing both victims at gunpoint; and that Clark was killed during the course of that robbery.
(d) It was not error for the trial court to instruct the jury both on conspiracy and parties to a crime. “[I]t has been repeatedly held that a conspiracy may be proven and a jury charge may be given on conspiracy and parties to a crime even though a defendant is not indicted under those theories.” Huey v. State, 263 Ga. 840, 842 (3) (439 SE2d 656) (1994).
(e) Nonetheless, we agree with Mangum that the charge on conspiracy was deficient in that the court failed to specify that the jury must be satisfied beyond a reasonable doubt of the existence of a conspiracy before considering the hearsay declarations of a co-conspirator. See Suggested Pattern Jury Instructions, supra.
4. As our holding in Division 2 requires reversal, and no othеr error is raised which is likely to recur on retrial, we do not reach those enumerations of error.
SEARS, Presiding Justice, dissenting.
Because I disagree with the majority‘s conclusion that the trial court improperly restricted Mangum‘s cross-examination of the State‘s juvenile witnesses concerning whether they had pending juvenile charges against them or were on probation stemming from juvenile charges, I must dissent to the reversal of Mangum‘s conviction. However, because I conclude that the trial court erred by failing to conduct an in camera review of the witnesses’ juvenile records to determine whether they contained material that could be used to impeach the witnesses, I would remand the case to the trial court for it to conduct such an examination.
Contrary to the majority‘s conclusion, the record does not support the conclusion that the trial court improperly limited the cross-examination of the juvenile witnesses. In a pre-trial hearing, Mangum sought to have the trial court review the juvenile court records of the State‘s witnesses, and inform Mangum of the witnesses who had juvenile cases pending against them. Although the trial court stated that it would not allow access to juvenile records or questions to a witness about the juvenile records themselves, it stated that it would allow the type of cross-exаmination permitted in Davis v. Alaska.7 At one point in the hearing, the trial court stated that juvenile court records are confidential and thus not subject to discovery; that Davis simply stands for the principle that a defendant has a right to cross-examine a witness; and that in Davis, the defense wanted to cross-examine a witness about “the fact that he was on probation in juvenile court — from the juvenile court for burglary when he testified against his client, and that had nothing to do with the integrity of the juvenilе court records.” At another point, the trial court stated that although the defense could not “go into the juvenile records,” the defense could cross-examine the witness about whatever it wanted to, “[t]hat‘s what was done in the Davis case.”
On balance, I think that a fair reading of the transcript of the pre-trial hearing shows that the trial court conveyed that it would not permit the discovery or the use of the juvenile records themselves, but that it would allow cross-examination about pending juvenile cases that was consistent with Davis. Moreover, this interpretation is consistent with the fact that at trial the trial court allowed defense counsel, over the State‘s objection, to question two witnesses about their pending juvenile cases. For example, when defense coun-
Because I do not agree with the majority‘s conclusion that the trial court impermissibly limited the type of cross-examination permitted in Davis, and because the majority reverses Mangum‘s conviction based on its conclusion that “the rule in Davis v. Alaska was violated,” majority opinion at 576, I must dissent to the reversal.
Nevertheless, I agree with the majority that “the defense was thwarted in its attempts to discover information concerning juvenile records of the State‘s witnesses and to have the court conduct an in camera examination of those records to determine whether they could be used for purposes deemed appropriate in Davis v. Alaska.” Majority opinion at 576. In this regard, the record shows that Mangum told the trial court he had issued a subpoena for the production of the juvenile court records of the witnesses in question and that he then moved the trial court to review those records in camera in order to determine if any relevant material, as outlined in Davis v. Alaska, was contained within the juvenile records. The trial court refused to review the records in question. Thus, the majority correctly concludes that the trial court‘s actions did thwart the defense‘s efforts to determine whether the State‘s juvenile witnesses had pending cases about which they could be cross-examined.
The present case is similar to Baynes v. State.8 In that case, defense counsel subpoenaed the records of a juvenile witness, and the State sought to quash the subpoena on the ground that juvenile adju-
In the present case, I conclude that defense counsel acted properly in subpoenaing the juvenile records and in asking the trial court to conduct an in cаmera review of those records to determine if they contained any relevant information. In this regard, requesting a trial court to review confidential records for relevant trial material is a procedure that has been approved by this Court,9 the Court of Appeals of Georgia,10 and the federal courts11 to determine whether certain records contain information material to the defense. Accordingly, I conclude that the trial court improperly refused to review the juvenile records in question, and thаt therefore the case should be remanded to the trial court for it to examine the applicable juvenile records.12
For the foregoing reasons, I dissent to the majority‘s reversal of Mangum‘s conviction on the ground that the trial court improperly limited the type of cross-examination permitted in Davis v. Alaska. Instead, I would remand the case to the trial court for it to determine whether the witnesses’ juvenile records contained material that would have been relevant to Mangum‘s trial under Davis v. Alaska.
I am authorized to state that Justice Hunstein and Justice Carley join in this dissent.