Lead Opinion
A jury convicted Demarcus Ali Sears of kidnapping with bodily injury and armed robbery, and imposed a sentence of death. The evidence adduced at trial showed that Sears and Phillip Williams kidnapped the victim, Gloria Wilbur, as she left a supermarket in Cobb County, Georgia; that Sears assaulted Ms. Wilbur with brass knuckles, put her in her car and drove north; that Sears raped Ms. Wilbur in Tennessee; and that he killed her in Kentucky by stabbing her with a knife.
In Sears v. State,
Each of the remaining enumerations attacks the validity of the jury’s verdict and the death sentence entered in this case. Finding no error, we affirm the imposition of the death sentence.
1. After deliberating for approximately six hours in the sentencing phase, the jury sent the trial court a note announcing that it was deadlocked eleven to one in favor of the death penalty, and asking how it should complete the verdict form. Over Sears’ objection, the trial court responded to the note as follows:
You all have been deliberating on this case for six hours. I would like you all to consider continuing your deliberations and see what you can do with the case. I’m not putting any pressure on you to [do] anything one way or another. Whatever your decision is, that’s [your] decision. But I feel like you need to deliberate on the case longer.
The jury resumed its deliberations and continued deliberating for another three hours. At that point, the jury sent a second note which read:
[W]e have reviewed the case from start to finish and we are still deadlocked eleven to one in favor of the death penalty. All twelve jurors agree that there is a hopeless deadlock with no hope of resolution. Deliberations have ceased. What do we do now? All minds are closed.
Sears urged the trial court to accept the jury’s “verdict” and impose a life sentence. The court declined to do so. Instead, it charged the jury, in part, as follows:
I believe it’s appropriate to give you some further instructions at this time. You’ve been deliberating a while, and I deem it proper to advise you further in regards to the desirability of agreement, if possible. This case has been exhaustively and carefully tried by both sides. It has been submitted to you for a decision and verdict, if possible. While the verdict must be the conclusion of each juror, and not a mere acquiescence of the jurors in order to reach agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with proper regard and deference to the opinion of each other. A proper regard for the judgments of others will greatly aid us in forming our own judgments. Each juror should listen to the arguments of other jurors. If the members of the jury differ in their views of the evidence, or the*836 mitigating or aggravating circumstances, such differences of opinion should cause them all to scrutinize the evidence more closely and to re-examine the grounds of their opinion. It’s your duty to decide the issues that have been submitted to you, if you can conscientiously do so. Do not hesitate to change an opinion if you become convinced it’s wrong. However, you should never surrender honest convictions or opinions in order to be congenial or reach a verdict solely because of the opinions of other jurors.
The jury was then excused for the evening. It reconvened the following morning and resumed its sentencing phase deliberations. After an hour and a half, the trial court informed counsel that one of the jurors had been sitting in the jury room with a Sony Walkman on her head; and that she had been asked to give it to the bailiffs “so she could participate in the deliberations.” The court also told counsel that the foreman had asked the bailiffs to remove all magazines and reading material from the jury room. In addition, the court stated that it had received two notes from the jury: one from the foreman and another from juror Angel Fisher. The note from the foreman, which contained blanks instead of personal pronouns to “protect the gender of the juror” in question, read:
In the jury selection process, each juror was read the charges in this case. Murder was not one of the charges. The reason that the juror who has steadfastly maintained [ ] position from the outset of deliberations has given for [ ] decision is that [ ] cannot vote on the death penalty because the Defendant was not convicted of murder. Can you provide the jury with a transcript of the questions and answers as to their position on the death penalty? We need to know what questions were asked and how the jurors responded. We would also like for you to provide to the jury a definition of perjury and the penalty for the commission of perjury.
The note from Fisher read:
I am concerned about the actions of the foreman of this jury. This letter is in reference to the foreman’s most recent letter to you. [The foreman] wrote this letter prior to our jury deliberations today. He informed us that he was submitting the letter to you whether we wanted him to or not. I don’t think this type of behavior is appropriate for a foreman. I will not sit on a jury where I am singled out. I am not being treated fairly in this deliberating process. I am also being singled out by the foreman, also he is overstepping his*837 boundaries as a foreman of a jury. To my understanding, a foreman should be a leader, not a dictator. Please explain the duties and responsibilities of a jury foreman. Should he be able [to] question a juror’s response to the Court during jury selection?
The trial court brought the jury in and said it had received notes from the foreman and Fisher. It summarized the contents of the notes, and stated that the jury should recall the previous instructions as to the imposition of the death penalty, aggravating circumstances, and mitigating evidence. It then informed the jury that it would not read the voir dire transcript and it would not define perjury. The court went on to clarify the role of a foreman by stating that, although the foreman is responsible for leading the deliberations, “in matters of voting, all jurors stand the same.” Finally, the court added:
A juror is responsible to deliberate in the jury deliberations. A juror is supposed to listen to his or her fellow jurors. A juror is supposed to vote their ideas and positions. A juror is supposed to participate. It is inappropriate for any juror to do anything other than fully participate in jury deliberations.
The jury was sent back to deliberate further. Then, after two and a half hours of additional deliberations, the jury announced that it had reached a verdict. The jury entered the courtroom and returned its verdict, finding the alleged statutory aggravating circumstances beyond a reasonable doubt, and sentencing Sears to death. The jury was polled and each juror stated that the verdict was his or her verdict and that it was freely and voluntarily rendered.
Sears contends the trial court coerced the jury to render a verdict of death. Whether a verdict was reached as the result of coercion depends upon the totality of the circumstances. See Jenkins v. United States,
The jurors deliberated for more than fourteen hours over a period of three days before reaching their verdict. Each of the jurors stood by that verdict, announcing, upon being polled, that they rendered it freely and voluntarily in the jury room, and that it was still their verdict. See Rouse v. State,
The trial court’s other instructions, urging the jury to reach a consensus, and to participate in the deliberations, were not coercive either. They did not put pressure on the jurors “one way or the other,” see Romine, supra at 525; they did not exhort “the minority to reexamine its views in deference to the majority, or to suggest that the majority’s position is correct.” United States v. Norton, 867 F2d 1354, 1366 (11th Cir. 1989). Nor did they urge the jurors “to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors. [Cit.]” Harris v. State,
Although the jury twice stated that it was at an eleven to one “deadlock,” the trial court was not bound by those pronouncements. Todd v. State,
The jury first indicated it was deadlocked after only six hours of deliberation. And it announced it was deadlocked again, after just another three hours. We cannot say that the trial court abused its discretion in requiring the jury to deliberate further, see United States v. Kramer,
Sears contends the testimony of juror Fisher, adduced upon remand, demonstrates that the actions of the trial court had a coercive effect upon her verdict. In this regard, Sears points out that Fisher testified she was afraid of being prosecuted for perjury, and she believed the trial court wanted her to change her vote because it singled her out by name and urged the jury to continue deliberating when it knew the nature of the jury’s numerical division. We cannot accept this contention.
Fisher, a school teacher, had a bachelor’s degree in criminal justice and had attended graduate school. She was the lone holdout for a life sentence — until she changed her mind. Although she testified that she felt bullied by the threat of perjury, she knew that she had not lied under oath. She felt intense pressure from the other jurors. (“I remember being yelled at basically because I was — they were angry at me. They wanted me to change my mind. So they were insulting my character and things like that.”) Ultimately, she gave in to that pressure. (“I changed my mind because they had — I mean I was ostracized. And I was just — I was basically made to change my mind by the other jury members.”) Viewing Fisher’s testimony as a whole, it is clear that she voted for the death penalty because she felt pressured to do so only as a result of the “normal dynamic of jury deliberations.” United States v. Cuthel, 903 F2d 1381, 1383 (11th Cir. 1990).
2. Sears contends he is entitled to a new trial because juror Kenneth Makant failed to disclose certain information on his juror questionnaire; and he injected that information into the jury’s deliberations. More specifically, Sears asserts that the juror questionnaire asked whether any member of a juror’s family had been the victim of a violent crime; that Makant responded to that question negatively; that, in so doing, Makant lied because his daughter had been the victim of a rape; and that, during the jury’s deliberations, Makant disclosed the fact that his daughter had been raped.
The question at issue, No. 28, reads as follows:
Have you or any member of your family or any close friend ever been the victim of a violent crime?
What was the crime:
Was anyone arrested in connection with the crime:
Was anyone convicted of the crime:
In order for a defendant to secure a new trial because a juror did not give a correct response to a question posed on voir dire (or, as here, a juror questionnaire), the defendant must show that the juror failed to answer the question truthfully and that a correct response would have been a valid basis for a challenge for cause. Royal v. State,
3. Sears asserts he was denied a fair trial because of two instances of alleged juror misconduct in the jury room: (a) Makant’s injection of his daughter’s rape and (b) the foreman’s statement that juror Fisher should be prosecuted for perjury.
(a) The fact that juror Makant injected his daughter’s rape into the jury’s deliberations is of no import. Makant testified that he only raised the issue because he believed the holdout juror was not taking the deliberations seriously. Besides, the circumstances of the rape of Makant’s daughter differed markedly from the kidnapping, rape and murder in this case. It cannot be said that Makant’s behavior in the. jury room rose to the level of juror misconduct. See Hilburn v. Hilburn,
(b) As the deliberations became more heated, the foreman stated that juror Fisher must have been lying when she responded to voir dire questions concerning her willingness to impose the death penalty, and that she should be prosecuted for perjury. These statements do not amount to juror misconduct. Compare People v. Redd,
4. Sears challenges the authority of the state to impose the death penalty for kidnapping with bodily injury on the grounds that (1) the kidnapping with bodily injury offense was completed when he first abducted the victim and hit her with brass knuckles, and (2) he was not convicted of murder.
The offense of kidnapping with bodily injury is a capital felony. OCGA § 16-5-40 (b). It requires an unlawful abduction and the infliction of some bodily injury. Pryor v. State,
In this case, Sears was indicted for kidnapping Ms. Wilbur and inflicting bodily injury upon her by striking her with brass knuckles, and stabbing her to death with a knife. There is no basis for Sears’ contention that the stabbing could not constitute part of the bodily injury in the kidnapping charge. As a matter of law, bodily injury does not have to be inflicted at the same moment as the initial abduction. Potts,
The jury found beyond a reasonable doubt that the offense of kid
5. Sears objects to the testimony of two witnesses, Detective Laurie Bello and Major Jim Burns. The former witness testified that Sears lacks remorse. The latter, a Cobb County jailor, testified that he became familiar with Sears in the three years that Sears had been in jail and that Sears’ reputation in the jail was bad — in fact, in his seventeen years of experience, Major Burns could not remember an inmate who had caused more trouble. The prosecutor asked each of these witnesses if they would believe anything Sears said under oath and they both replied, “No.”
During the penalty phase, “[a]ny lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of [OCGA § 17-10-2].” Fair v. State,
6. The jury found as aggravating circumstances that the kidnapping with bodily injury was committed while Sears was engaged in the capital felonies of armed robbery, rape and murder, OCGA § 17-10-30 (b) (2), and that the kidnapping with bodily injury was outrageously vile, wantonly vile, horrible and inhumane, in that it involved torture, depravity of mind, and aggravated battery to the victim. OCGA § 17-10-30 (b) (7). Sears contends the jury’s aggravating circumstance findings were improper because (a) the state failed to give notice of its intent to seek the (b) (7) circumstance before trial; and (b) the verdict form was arranged as a checklist. We disagree.
(a) The state filed a notice of intent to seek the death penalty listing three OCGA § 17-10-30 (b) (2) aggravating circumstances and “any others which may be supported by the evidence upon the trial of said case.” In a pretrial motion, Sears objected to the catch-all phrase at the end of the state’s notice of intent and sought to compel the
(b) OCGA § 17-10-30 (b) (7) reads as follows: “The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” The statute is worded in the disjunctive, requiring the jury to find that “at least one phrase of the first clause of the statute exists due to the existence of at least one phrase of the second clause of the statute.” Fair v. State, supra at 872 (3).
The record reveals that the trial court properly instructed the jury on the relationship of the clauses. Moreover, the verdict form accurately reflects the language of the statute; and the jury marked the form in such a way as to indicate that it found the existence of all of the (b) (7) factors beyond a reasonable doubt. It cannot be said that the verdict form was erroneous simply because it set forth the (b) (7) factors in the form of a checklist.
7. Sears challenges several jury instructions in the sentencing phase.
(a) Sears contends that the court’s instructions allowed the jury to impose the death sentence if any of four aggravating circumstances were found and did not make it clear that a death sentence could be returned only if the jury found beyond a reasonable doubt that Sears committed murder. A review of the record reveals, however, that in addition to charging on murder as a statutory aggravating circumstance, the trial court also charged that “the sentence of death shall not and cannot be imposed unless you find beyond a reasonable doubt that the defendant either committed the murder, attempted to kill the victim, or intended that deadly force be used by another to accomplish the criminal enterprise.” Although a mere attempt to kill would not justify the death penalty, any error in this regard was harmless. The overwhelming evidence established that the victim died from wounds inflicted by Sears, thus satisfying the requirement that a death sentence be imposed only upon a finding beyond a reasonable doubt that the defendant committed murder.
(b) The trial court charged the jury on the statutory definition of murder, but did not define “malice aforethought.” We agree that the trial court should have defined malice, which is an essential element of murder. See Wade v. State,
(c) In its charge, the trial court repeatedly linked the (b) (7) factors with murder instead of kidnapping with bodily injury. On several occasions the court immediately corrected itself; on others, however, it did not. Sears asserts the trial court’s charge was erroneous and misled the jury because it was left with the impression that it was to examine the (b) (7) factors with the murder in mind. We disagree. The trial court’s references to murder, instead of kidnapping with bodily injury, were a mere slip of the tongue. Viewing the charge as a whole, it cannot be said that the trial court’s verbal inaccuracies misled or confused the jury. Conner v. State,
(d) Jarrell v. State,
(e) Sears asserts the trial court’s charges on mitigation and aggravation require reversal because they did not adequately address the issue of “unanimity.” We disagree.
(i) Although the trial court failed to charge the jury that a finding of mitigating circumstances need not be unanimous, it did charge that “it is not required and it is not necessary that you find any extenuating or mitigating . . . circumstances” in order to return a life sentence. Viewed as a whole, the charge did not impose a unanimity requirement for mitigating circumstances. See Ledford v. State,
(ii) The trial court did not specifically instruct the jury that its findings with regard to aggravating circumstances must be unanimous. However, it did instruct that the verdict as to penalty must be
(f) In explaining rape as the second alleged aggravating circumstance, the trial court charged “[c]arnal knowledge and rape occurs when there is any penetration of the female sex organ by the male sex organ.” This statement does not require reversal because the trial court also correctly charged that an element of rape is that it occur “forcibly and against [the victim’s] will”; and because consent was not a defense raised in the case.
(g) The trial court correctly instructed the jury on venue for kidnapping with bodily injury by charging that “[t]here’s no requirement that the bodily injury be inflicted in the venue where the person was seized.” See Krist v. State,
8. “The test on review for allegedly improper arguments by the state to which the defense did not object at trial is ‘whether the improper argument in reasonable probability changed the result of the trial.’ Todd v. State,
9. As we held on interim appellate review, the trial court did not err in denying Sears’ pretrial motion for a psychiatric evaluation between the guilt and sentencing phases of the trial. Sears v. State,
10. We do not find that Sears’ death sentence was imposed under the influence of passion, prejudice, or other arbitrary factor. OCGA § 17-10-35 (c) (1).
11. Electrocution does not constitute cruel and unusual punishment in violation of the Eighth Amendment. DeYoung v. State,
12. The imposition of a death sentence in this case would not be excessive or disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35 (c)
Judgment affirmed.
Appendix.
Tharpe v. State,
Notes
Trial courts should not, of course, inquire as to the nature of a jury’s numerical division. United States v. Norton, supra at 1365. And we encourage them to inform jurors not to reveal that information. See Romine, supra at 522; Wilson v. State,
After the case was docketed in this Court, the district attorney filed a motion to correct the record to reflect that the trial court charged that “carnal knowledge in rape occurs” rather than “carnal knowledge and rape occurs.” The trial court granted the motion based on the affidavits of the prosecutors that they “recalled” that the court used the word “in” and not “and” and based on the trial court’s statement that its habit was to use the word “in” instead of “and.” Sears contends that this amendment constitutes error. While it is doubtful that the trial court had jurisdiction to consider this issue and change the transcript when the case was pending in this Court, see Unified Appeal Procedure, 246 Ga. Appendix at IV (B) 1 (after docketing in Supreme Court, superior court may be directed by Supreme Court to conduct further hearings), we need not decide the issue. Given the state’s failure to seek the amendment until four years after the completion of the transcript, the fact that the court reporter’s notes matched the transcript, and the presumption of correctness of the trial transcript, we have chosen to rely on the contemporaneously prepared record. Therefore, Sears’ contention that the amendment of the record constitutes constitutional error is moot.
Dissenting Opinion
dissenting.
Because the trial court’s instructions to the jury during its deliberations in the sentencing phase were improperly coercive, I dissent.
It is a fundamental precept that a jury’s verdict should be reached freely, without coercion or undue pressure; the jury must be “free from any seeming or real coercion on the part of the court.”
On the second day of deliberations and after six hours of deliberations in the sentencing phase, the jury sent the judge a note that announced that it was at an 11 to 1 deadlock in favor of death and asked how to fill out the verdict form. The trial court read the note in open court and told the jury to continue its deliberations. After a lunch break and another three hours of deliberating, the jury sent a second note reiterating a “hopeless deadlock with no hope of resolution” and stating that “all minds are closed.” The trial court responded by giving an “Allen”
These final two notes revealed a serious personal conflict within the jury room, which the evidence on remand confirmed. The foreman’s note strongly suggests a threat of a peijury prosecution against the holdout juror based on her responses during voir dire. Fisher’s note reveals that she was aware of the foreman’s concerns regarding her voir dire answers and was seeking some assistance from the court. The other jurors were also made aware of the peijury threat and against whom it was made when the trial court revealed the contents of the notes in open court before the whole panel and identified the holdout juror by name.
The most troubling aspect of this case is that the trial court ignored the specter of a peijury prosecution while forcing continued deliberations. The trial court has a duty to respond to jury questions and provide guidance when jurors’ threats to one another come to its attention.
Additionally, even though the final two notes were the third declaration of a deadlock by the jury, the trial court returned the jury to its deliberations without making an inquiry as to whether the jury had made any progress since its first declaration of an 11-1 split for death. The record reveals that the trial court also failed to consider whether the jurors believed that further deliberations would be of assistance, whether the jury was so exhausted that the minority might be induced to vote for a verdict that they did not truly support, or the length and complexity of the trial.
Another relevant circumstance is that the jury revealed the nature of its division and the trial court reiterated the precise division in its comments to the jury. In Brasfield v. United States,
Another circumstance to consider is that after the court responded to the final two notes, the jury reached its verdict in less than four hours, which included a lunch break. This time period of approximately three hours is not long enough to dispel any concerns regarding coercion, especially in view of the fact that the jury’s deliberations for the previous IOV2 hours over three days had produced no signs of progress.
Considering the totality of these circumstances, I conclude that the trial court’s failure to address directly the threat against the holdout juror coupled with its insistence that the jury continue deliberating without meaningful guidance resulted in a coercive effect and I would reverse and remand for a retrial of the sentencing phase.
I am authorized to state that Chief Justice Benham and Justice Sears join in this dissent.
Riggins v. State,
See Riggins,
Jenkins v. United States,
See Allen v. United States,
See Edwards v. State,
McMillan v. State,
Romine,
Romine,
See United States v. Berroa,
See United States v. Sae-Chua,
See Williams v. United States,
Compare Lowenfield,