Lead Opinion
Derrick Clements was charged with malice murder and other crimes arising out of the 1997 shooting death of Tanika Stevenson. In 1999 a jury acquitted Clements of malice murder but found him guilty of felony murder, armed robbery, kidnapping with bodily injury, entering an automobile with intent to commit theft and possession of a firearm during the commission of a felony. Although Clements filed a timely motion for new trial, the motion was not ruled upon until 2010 when the trial court granted the motion on certain grounds and denied it on other grounds.
1. The judge who granted Clements’ motion for a new trial did not preside over the trial itself and did not hear any live testimony at the hearing on the motion other than that from Clements’ trial counsel regarding an ineffectiveness claim not at issue in these appeals. Accordingly, as to the issue raised in these appeals, the successor judge’s factual rulings are not accorded the same broad deference given to findings by the presiding judge. See Head v. CSX Transp.,
Dear Judge, my husband saw the news this morning and came to me and said do not let them put me on this trial for Derrick Clements because I coached him in baseball. He could tell by the look on my face that it was too late. I have literally been sick over this and unsure of what I need to do. I know that I could listen to the trial and be unbiased; however, my husband is in hopes of returning to Manchester High School next year to teach again and I am afraid some people might have hard feelings toward him due to the outcome of this trial. Please tell me what I need to do.
After clarifying that the issue had only arisen that morning, the juror answered questions posed by the trial judge. In the first question, in which the trial judge noted how jury service on such a case “is not easy” but asked whether the juror could “still be fair and impartial,” the juror responded that she was “sure” that she could but that she “wanted to be honest before it began and let y’all know that, you know, my husband came to me this morning and told me this.” The juror acknowledged that she could still be fair and impartial “even with this disclosure that happened this morning” and that she had not “made up [her] mind” and still had “an open mind.” Defense counsel then questioned the juror carefully about her husband’s job situation, in which she explained that her husband used to teach at Manchester High School, was currently coaching at another high school and “has plans to going back to Manchester next year if one teacher retires that has said he was going to.” Defense counsel next directly asked the juror if she felt “any pressure that your husband’s opportunity to get this job would be better or increased if you were on a jury that convicted [Clements] rather than found him not guilty.” The juror’s answer was unequivocal: “I don’t think the verdict would have any impact on him getting the job.” She then explained that she hoped “that once [her husband] goes back up there, you know, the students up there wouldn’t have a problem with him.”
Defense counsel “rephrased” the question, asking the juror: “Do you feel or believe that how you vote in this case could make your husband’s job, if he gets it, more difficult if you vote not guilty and
The trial judge then informed the juror that she would not be excused and again obtained the juror’s assurance that the matter would not “affect her decision in this case one way or the other.” After the juror returned to the jury room, defense counsel moved for a mistrial on the bases of juror misconduct, in that the juror had “outside contact by her husband overnight,” and juror bias, in that the juror “says that if she voted guilty [sic] it might adversely impact on her husband if he got the contract with the school.” The trial judge denied the motion. As to the misconduct allegation, the trial court found that it did not warrant dismissal of the juror because the juror had not discussed the merits of the case with her husband and their discussion was limited to the husband pleading with her not to be on the case, which, as the trial judge noted, served to indicate the husband’s ignorance of the fact that she had already been selected. As to the juror bias allegation, the trial judge found that the juror had not been tainted by the discussion with her husband and had no fixed opinion about the case. The trial judge specifically based his finding upon his personal observation of the juror as to her sincerity and truthfulness. The proceedings then resumed. As noted above, the jury acquitted Clements of malice murder and convicted him of felony murder and the remaining charges.
The successor judge, in his order granting Clements’ motion for a new trial on the special ground of juror bias, correctly recognized that juror Henderson had “expressly stated that her husband asked her not to be a juror” and that “a verdict of not guilty might make her husband’s job more difficult.” The successor judge then pointed to the juror’s “clear” violation of the trial court’s order not to discuss the case with others when she engaged in a conversation that “went so far as to discuss the ramifications [that] a not guilty verdict would have on [the husband’s] possible new job” and noted the juror’s “apprehension that [her] interest would be affected by the verdict.” However, in rejecting the presiding judge’s decision not to remove juror Henderson, the successor judge based his ruling on the fact that juror Henderson “may have been affected by the apprehension that [her] own interests would be affected, either favorably or prejudicially, by the rendition of one verdict rather than another,”
As an initial matter, we note that, although the successor judge referenced the impropriety of the juror’s conduct in discussing her service on the jury with her husband without analyzing the matter further,
With respect to the issue of juror bias, however, we conclude that
Regarding these potential “hard feelings,” the successor judge then focused only on the juror’s concerns about the effect of a verdict of “not guilty” and erred by ignoring the juror’s express acknowledgment that any verdict rendered in the case had the potential to make her husband’s job more difficult, i.e., that it would “cut both ways.” Rather, as the colloquy set forth earlier established, and as reflected in the presiding judge’s comments, it is apparent that the juror’s concern was based on the fact that she had been selected to serve on the jury in a high-profile case in a small community where any verdict, whether acquittal or conviction, would likely result in some members of that community having “hard feelings” against the spouse of a participating juror.
Based on our review of the record, we find nothing that supports the successor judge’s conclusion that the concern expressed by juror Henderson affected in any degree her ability to serve as a fair and impartial juror whose verdict would be based solely upon the evidence and the law as set forth in the trial court’s charge. Compare Cummings v. State,
Although the decision to grant a new trial is addressed to the sound discretion of the judge who saw the witnesses and heard the testimony, the scope of discretion is not as extensive when it is exercised by a judge who did not preside at the trial and heard no pertinent live testimony at the hearing on the motion for new trial. Head v. CSX Transp., supra,
2. We next address the challenges raised by both the State and Clements to the trial court’s rulings regarding the sufficiency of the evidence to support the verdicts. Specifically, the State asserts error in the trial court’s ruling that the evidence at trial was not sufficient to support Clements’ conviction of entering an automobile with the
(a) The evidence adduced at trial established that the victim and Clements were involved in a sexual relationship that Clements, a married man, had kept secret from his wife. The victim was approximately seven weeks pregnant with Clements’ child. On the day of the crimes, the victim was videotaped purchasing a milkshake at a local fast food restaurant around 5:00 p.m. A park ranger at the F. D. Roosevelt State Park found the victim’s car just after 8:00 p.m. that day in the parking lot to a scenic overlook. The ranger summoned police officers after observing the presence of blood and hair on the top of the car’s trunk, blood droplets on and around the car and a pool of blood on the ground 60 inches from the rear of the car. The victim’s body was subsequently found inside the trunk. Expert testimony established that she died from a gunshot wound to the back of her head; she had also sustained pre-mortem lacerations, including one to the back of her head that could have been inflicted by impact with a car bumper. The victim’s pocketbook was found on the front seat of the car; it did not contain her billfold, driver’s license or bank cards. Witnesses saw appellant driving his vehicle in the direction of the park around 5:15-5:30 p.m., at a time when appellant claimed in his statements to law enforcement officers that he was elsewhere. Bank documents established that, at 6:11 p.m. and 6:12 p.m. on the day of the crimes, the victim’s ATM card was used to make two withdrawals in the amounts of $370 and $140 from her bank account; appellant was videotaped by bank surveillance cameras making those withdrawals. When questioned about the withdrawals, appellant initially denied making them and challenged the investigating officer to prove otherwise; appellant admitted to withdrawing the money only after he was shown the bank videotape, at which time he claimed the victim had earlier given him her ATM card. He told the officer that he took the money because he “had paid [the victim] to have an abortion and she was not going to have the abortion so I wanted my money back.”
The evidence was sufficient to enable a rational trier of fact to find Clements guilty beyond a reasonable doubt of felony murder, armed robbery and possession of a firearm during the commission of a felony. Jackson v. Virginia,
(b) The trial court found that there was “not one iota of evidence” to support Clements’ conviction for entering an automobile with the intent to commit theft. We disagree. The victim’s
(c) Clements contends the evidence of asportation was insufficient to support his conviction for kidnapping with bodily injury under our decision in Garza v. State,
(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.
Id. at 702. The uncontroverted facts in this case show that the victim was shot outside her car and moved approximately five feet to her car where she was then placed inside the car’s trunk. Based on the pre-mortem injury to the back of the victim’s head that could have been inflicted by her head hitting the car’s bumper, there was evidence from which the jury could have found the victim was alive when she was placed inside the trunk. Here, while the duration of the movement may have been short, the other factors all support the verdict. See Brown v. State,
We therefore conclude that the evidence was sufficient for the jury to find that the asportation element of kidnapping, as interpreted in Garza, was proven in this case and that a rational trier of fact was authorized to find Clements guilty beyond a reasonable doubt of kidnapping with bodily injury. Jackson v. Virginia, supra.
3. We find no error in the admission of testimony by an investigating officer who, after defense counsel tried to impeach him on cross-examination as to the accuracy of the notes he took during the investigation, testified on re-direct that he was “one of the most honest agents in the world” in regard to the accuracy of those notes. See Hardy v. State,
4. Clements contends the trial court committed reversible error when, during its orientation statements to the jury about the judicial system and the manner in which the trial would be presented, it explained that the attorneys would submit
requests to charge, that is theories of law that they think are applicable to the trial of this case. The Court will consider those and discuss with the lawyers what charges will be given, but what charge of the law is to be given rests solely on the shoulders of the Court and if the Court makes a mistake, not intentionally, but Courts make mistakes, there is a higher court to look over what I have done on the record and make a decision as to whether or not I made a glaring mistake or a crucial mistake or a mistake on purpose [sic].
(Emphasis supplied.) We recently reversed a conviction in which the trial court, in response to a jury inquiry about certain trial exhibits, informed the jury that it could not give the jury the exhibits because, if the court did so, “we would have to try the case all over again” and that “it would be reversible error” for the court to give the jurors those exhibits. Gibson v. State,
“The Supreme Court has repeatedly held references should not be made to the reviewing courts by court or counsel except to cite their decisions. [Cits.]” [Cit.] However, not every reference to the appellate courts during trial is reversible error. [Cits.] The references here to the curative powers of the appellate courts must be considered in the context of juror orientation of the judicial system and how it functions. Juror orientation is recommended by the American Bar Association but only by use of a juror handbook — thus avoiding the pitfalls encountered in the instant case. [Cit.] Where, as here, this form of orientation occurred before any evidence was introduced, did not convey or intimate any opinion of the trial judge ([cit.]), nor lessen the sense of responsibility of the jurors ([cit.]), we find such abstract references to the appellate courts not to require reversal. [Cit.]
Id. at 893 (3). As in Bearden, we find that the trial court’s statement here, while error, does not require reversal.
5. For the reasons set forth in Shadron v. State,
6. In conclusion, we reverse the trial court’s ruling in Case No.
Judgment affirmed in part and reversed in part.
Notes
The crimes occurred on August 1, 1997. Clements was indicted January 11, 1999 in Harris County on charges of malice murder, felony murder, armed robbery, kidnapping with bodily injury, entering an automobile with intent to commit theft and possession of a firearm during the commission of a felony. He was acquitted of malice murder and found guilty of the remaining charges on February 8, 1999. He was sentenced that same day to three consecutive life sentences and two consecutive five-year sentences. The life sentence for armed robbery was subsequently vacated because that offense merged with the felony murder conviction. See Malcolm v. State,
The successor judge improperly attributed the quotation to Gormley v. Laramore,
While the juror did not testify that she and her husband directly discussed the matter, that discussion was implicit in her answers.
Although Juror Henderson expressed her concern about the feelings of “some people,” it is apparent from the transcript that her concern was based on the possibility that some students at the high school might make problems for her husband due to her jury service.
In this regard we note that, in ruling upon this special ground in Clements’ motion for new trial, the successor judge expressly chose to use the appellate standard of manifest abuse of discretion as set forth in Kim v. Walls,
Garza v. State was superseded by statute for offenses occurring after July 1, 2009. See OCGA § 16-5-40; Hammond v. State,
To the extent dicta in Price v. State,
The trial court made specific reference to the State’s burden to prove its case beyond a reasonable doubt, albeit not as immediately in the challenged instruction as in Shadron, supra; it instructed the jury that the indictment should not be considered as evidence; and it
Concurrence Opinion
concurring in part and concurring specially in part.
I join the majority opinion except for Division 4, which I join in the judgment only for the reasons given in my dissent in Gibson v. State,
I am authorized to state that Presiding Justice Carley joins in this opinion.