Following the denial of his motion for new trial, as amended, Herman Smith appeals his convictions for felony murder while in the commission of aggravated assault, aggravated assault with a deadly weapon, two counts of possession of a firearm during the commission of a felony, and carrying a weapon without a license, all in connection with the fatal shooting of Cardarius Steagall and an assault upon Chaserah Horton. Smith challenges the trial court’s refusal to grant a mistrial and two evidentiary rulings. Finding the challenges to be unavailing, we affirm.
1. Construed to support the verdicts, the evidence showed the following. On November 18, 2012, at approximately 2:30 a.m., police responded to a nightclub where they found Steagall dead on the floor. Next to the body, the officers discovered a .22 caliber revolver, with one empty shell casing and two live bullets in it. The spent shell casing was the final round in the cylinder, and the trigger would have to be pulled five times for the next live round to fire. Officers also recovered four .45 caliber shell casings and two .45
Later on the day of the shooting, investigators interviewed Smith, who admitted that he was at the nightclub when Steagall was shot. Smith also stated that he had used cocaine, a street drug he called “Molly,” and alcohol the previous night and that the whole night was a “blur.” Smith said that he had heard a single gunshot and ran from the building. During a second interview on December 6, 2012, Smith claimed that Steagall had brandished a weapon, causing Smith to fire in self-defense.
At trial, witnesses called by the State testified that Steagall was not holding a gun when he was shot. Horton testified that he was next to Steagall, that he heard three shots, that he thought for a moment that he had been shot, and that he saw Steagall fall and did not see him with a gun. Horton also testified that he made eye contact with the shooter, whom he positively identified as Smith, and saw him put the gun away Witnesses called by Smith, however, testified that, at various times during the night, they had seen Steagall with a gun.
Smith does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court’s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational trier of fact to find Smith guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia,
2. Smith contends that the trial court erred by refusing to grant motions for mistrial he made during jury deliberations on the ground that notes from the jury showed that it was hopelessly deadlocked. Instead of declaring a mistrial, the trial court instructed the jury several times to continue deliberations, and the court eventually gave a modified Allen charge. See Allen v. United States,
Early in the jury’s deliberations, which began at 1:30 p.m. on Monday, August 5, 2013, the jurors sent various notes to the trial court containing requests for certain exhibits and asking questions about the evidence and the law. These were followed late Monday afternoon and Tuesday by a number of notes from the jury regarding its deliberations. The first of these notes said, “What happens if the jury vote is at 11 guilty and one not guilty on count one and count two?”
We continue to deliberate count one and count two. There are still ten guilty and two not guilty One not guilty is reviewing the evidence, and one refuses to change her vote. The ten guilty votes agree to compromise for count one not guilty for aunanimous guilty verdict on count two. Would you like for us to continue to deliberate? 3
Smith again moved for a mistrial, and the State again requested an Allen charge. At 9:55 a.m., the judge denied both and instructed the jury to continue deliberating. A subsequent note from the jury stated, “We have continued to deliberate and review the evidence. There are still two not guilty votes on counts one and two. There is one not guilty that is still reviewing the evidence. The other not guilty will not waiver [sic] and has not and is not willing to review the evidence.” Smith again moved for a mistrial, and the State requested that the alternate juror be substituted for the juror refusing to deliberate or, in the alternative, that an Allen charge be given. The judge denied these requests and, at 11:00 a.m., instructed the jurors to continue to deliberate. A later note from the jury read, “Are there suggestions from the Court on how to continue deliberations? We have still got the same dilemma.” Smith, once more, requested a mistrial, which was denied.
After lunch, the foreperson, at her request, was brought into the courtroom, and she stated, “We still have one that’s continuing to read the evidence, but we have one juror that refuses to review the evidence, the indictment, the instructions. So I’m looking for guidance from the Court on how to get past that stalemate.” In response to questions from the court, the foreperson stated that all 12 jurors had participated in the deliberations at the start and continued for a period of time. When the foreperson was excused, Smith moved for a mistrial, and the court denied it and instructed the jurors to resume their deliberations. The next note from the jury read, “Deliberations continue. Count one is guilty three, not guilty nine. Count two is guilty 11, not guilty one. The compromise during deliberation from foreperson was for each person to reconsider based on evidence. One juror continues to refuse to participate.” Smith moved for a mistrial, noting that the jury had deliberated for close to ten hours, and the State requested an Allen charge. The judge denied both requests and instructed the jury to keep deliberating. Another note from the jury read, “The vote remains count one not guilty, nine[;] guilty, three. Count two 11 guilty, one not guilty” The court permitted the jury to take a break and resume its deliberations upon returning. Thereafter, the jury sent a note saying, “Deliberations continue. Current jury vote, count one, one guilty, 11 not guilty. Count two, 11 guilty, one not guilty Each of the number one on both counts that are making the votes non-unanimous are visibly not willing to change their vote.” Once again, Smith moved for a mistrial. The judge denied it and instructed the jury to keep deliberating.
At 3:20 p.m., another note from the jury stated, “We have the one guilty count on count one willing to change their vote to not guilty if the juror that’s voting not guilty on count two will change their vote to guilty. The juror with the not guilty remains unchanged. Suggestions?” The State again requested an Allen charge. The court decided not to give the pattern charge but, over Smith’s objection, did administer an Allen-like charge drawn from ABA Standard for Criminal Justice 15-5.4 (3ded. 1996) (formerly 15-4.4).
As this review demonstrates, the jury did not simply announce that it was “deadlocked.” Rather, the jury reported its numerical division and the lack of continued participation by one juror, solicited suggestions and guidance from the court, and described its position with the terms “stalemate” and “dilemma.” Even assuming that the jury had more strongly described itself as “hopelessly deadlocked” or some equivalent description, “the trial court was not bound by those pronouncements. On the contrary, the trial court, in the exercise of a sound discretion, was required to make its own determination as to whether further deliberations were in order.” Sears,
In the case at bar, the trial lasted nearly a week,
After those instructions and the modified Allen charge, the jury decided to review the evidence again in a different, way, asking for a room suitable for a re-enactment, and then spent a few additional hours of deliberation before returning unanimous verdicts, including verdicts of not guilty on two of the most serious charges. Moreover, the jurors were polled and individually confirmed their verdicts. Considering the totality of these circumstances, we conclude that the trial court’s actions did not coerce the jury’s verdicts. See Drayton,
3. Smith urges that the trial court erred in admitting an audio recording of a five-minute phone call that Smith made from jail to a friend.
Smith argues that during much of his phone call from jail, he made derogatory references to Caucasians (“crackers”), women (“bitches”), and police officers (“pigs”) that were highly prejudicial, serving only to inflame the passions of the jury against him. That prejudicial effect, Smith asserts, substantially outweighed the probative value of the audio recording, as the only arguably relevant portions of the phone call were his
We have carefully reviewed the audio recording. Although parts of it are difficult to understand, it is clear that Smith said he “didn’t do it,” that he denied the existence of any evidence against him, and that he did not claim self-defense at that time. Thus, the recording showed that Smith made statements that were not consistent with either his statements at his second police interview or the defense theory of justification presented at trial. “Certainly, the relevance of defendant’s own statements about the crime cannot be disputed.” Carroll v. State,
4. Finally, Smith contends that the trial court erred by denying his motion to redact his first statement to police to exclude portions that mention his illicit drug use because those portions involved unrelated criminal acts that constituted irrelevant character evidence. As we recently recognized, “[t]he limitations and prohibition on ‘other acts’ evidence set out in OCGA § 24-4-404 (b) do not apply to ‘intrinsic evidence.’ ”
[Ejvidence pertaining to the chain of events explaining the context, motive, and set-up of the crime, is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury . . . [Ejvidence of other acts is “inextricably intertwined” with the evidence regarding the charged offense if it forms an integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted. And this sort of intrinsic evidence remains admissible even if it incidentally places the defendant’s character at issue.
Id. (citations and punctuation omitted).
In this case, Smith used his consumption of drugs to explain his condition on the night of the murder, to excuse his partial lack of recollection, and to deny his involvement in the shooting. Therefore, the portions of Smith’s initial statement to police that admit his illicit drug use were inextricably intertwined with evidence regarding the charged offenses, as such portions formed an integral and natural part of his account of the circumstances surrounding the offenses for which he was indicted, and the same portions of Smith’s first statement were relevant to his defense of justification. Accordingly, we conclude that, although Smith’s character may have been incidentally placed into evidence, the trial court did not abuse its discretion in admitting the portions of Smith’s statement at issue as intrinsic evidence. See Williams,
Judgment affirmed.
Notes
The crimes occurred on November 18, 2012. On June 18, 2013, a Carroll County grand jury indicted Smith for malice murder, felony murder while in the commission of the aggravated assault of Steagall, the aggravated assault of Steagall with a deadly weapon, two counts of the aggravated assault of Horton with a deadly weapon, two counts of possession of a firearm during the commission of a felony, and carrying a weapon without a license . He was tried before a jury July 29-August 6, 2013, and found not guilty of malice murder and one count of the aggravated assault of Horton, but guilty of all other charges. On August 22, 2013, Smith was sentenced to life in prison for felony murder, a concurrent term of twenty years in prison for the other count of aggravated assault of Horton, consecutive terms of five years in prison for each count of possession of a firearm during the commission of a felony, and a concurrent term of twelve months in prison for carrying a weapon without a license; the remaining count of aggravated assault upon Steagall merged with the felony murder for the purpose of sentencing. Trial counsel filed a motion for new trial on Smith’s behalf on August 26, 2013, and the motion was amended by new counsel on July 25, 2014. The motion for new trial, as amended, was denied on March 15, 2017. A notice of appeal was filed on April 12, 2017, and the case was docketed in this Court for the August 2017 term. The appeal was submitted for decision on the briefs.
Count 1 of the indictment charged malice murder, while Count 2 charged felony murder while in the commission of aggravated assault.
Smith does not raise any claim of error based on the possibility that the jury may have negotiated and reached a “compromise” verdict.
That charge, as administered by the court, reads as follows:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views, and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. Your sole interest is to ascertain the truth from the evidence in the case.
The ABA Standard for Criminal Justice 15-5.4 cmt. (3d ed. 1996) states that the conditions under which a jury is forced to deliberate are often the key factor. Examples given by that commentary include sleep deprivation and a threat to keep the jurors together for an unreasonable or indefinite period of time until they agree on a verdict. We note, however, that there is no indication in this case of that kind of difficult condition for deliberations.
The jury was selected on Tuesday, July 30, 2013, the presentation of evidence began on Wednesday morning, July 31, and the trial court completed its charge to the jury at 1:30 p.m. on Monday, August 5.
The entire recording was played for the jury, except for brief references to Smith as “Hit Man” at the very beginning of the phone call. See Carroll v. State,
We note that, as the State argued, if defense counsel’s statement of “no objection” did amount to a forfeiture of ordinary appellate review, we still would review admission of the evidence in question for plain error under OCGA § 24-1-103 (d), see Crayton v. State,
Although our new Evidence Code applies to this case, we observe that, under the former Evidence Code, “ ‘evidence as to whether a defendant was under the influence of alcohol or drugs at the time a crime was committed [was] deemed part of the res gestae and [was] admissible as such even though it may [have] incidentally place[d] the defendant’s character in evidence.’ ” Hamilton v. State,