Leeks v. State, S14A1370.

• Decision Date: 16 February 2015
• Docket Number: No. S14A1370.,S14A1370.
• Citation: 296 Ga. 515,769 S.E.2d 296
• Parties: LEEKS v. The STATE.
• Court: Georgia Supreme Court

296 Ga. 515

769 S.E.2d 296

LEEKS

v.The STATE.

No. S14A1370.

Supreme Court of Georgia.

Feb. 16, 2015.

Sheueli Cindy Wang, Atlanta, for appellant.

Paul L. Howard Jr., Dist. Atty., Marc A. Mallon, Paige Reese Whitaker, Asst. Dist. Attys., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Rochelle W. Gordon, Asst. Atty. Gen., for appellee.

Opinion

HUNSTEIN, Justice.

Appellant Carrie Leeks was convicted by a jury of murder and related offenses for the July 4, 2006 stabbing death of her husband, Louis Woodall. Appellant appeals the denial of her amended motion for new trial and the grant of the State's motion to supplement the record. For the reasons set forth below, we affirm in part and vacate in part.¹

Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. On July 4, 2006, Appellant and her husband were hosting a party at their apartment when they began arguing. The victim shoved Appellant but not very hard. Appellant picked up a knife from a nearby table and stabbed the victim in the chest. The victim fell to the ground, then stood up, stumbled out of the apartment, and collapsed on the apartment's patio. Appellant washed the knife in the sink. One of Appellant's sisters called 911, and the dispatcher instructed her to apply pressure to the victim's wound. She handed the phone to Appellant so that she could treat the victim, and Appellant told the dispatcher that an unknown male stabbed the victim. When the ambulance arrived, Appellant rode with the victim in the ambulance to Grady Memorial Hospital. After the ambulance departed, one of Appellant's sisters told police officers that Appellant had stabbed the victim. Police officers apprehended Appellant at the hospital. The victim died at the hospital. According to the medical examiner, the victim died from a stab wound in his left chest, which entered his heart. Appellant was interviewed by a detective later that same day, and her videotaped statement from this interview was played for the jury. In her statement, Appellant admitted repeatedly that she stabbed the victim.

1. Though Appellant has not enumerated the general grounds, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of the crimes of which she was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see also Vega v. State, 285 Ga. 32, 33(1), 673 S.E.2d 223 (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ”) (citation omitted).

2. Appellant argues that Judge Manis erred in granting the State's motion to supplement the record.² The jury submitted five notes to Judge Glanville. The first three notes are discussed in the trial transcript: Judge Glanville discussed the questions with counsel, called the jury to open court, and responded to the questions in the presence of Appellant and all counsel.

There is no discussion in the transcript of the last two jury notes. However, both of these notes are included as exhibits in the record, showing the time and date received by the court as well as a handwritten response by Judge Glanville. The question and response on Jury Note 4 are as follows: “On charges 2+3 (Felony Murder) are there lesser charges, such as manslaughter.... Answer: You will have to rely upon the [ ] charge of the court.” The question and response on Jury Note 5 are as follows: “We would like to see the letter Ms. Leeks wrote to Mrs. Woodall.... Answer: You will have to rely upon the evidence that was presented.”

Because the transcript was incomplete, the State moved to supplement the trial transcript, pursuant to OCGA § 5–6–41(f), with the affidavit of Judge Glanville and the testimony of the two prosecutors who tried the case, in order to show Judge Glanville's customary practice for responding to jury questions and notes. Judge Manis held a hearing, at which the two prosecutors and Appellant's trial counsel testified about what had occurred during trial and about Judge Glanville's customary practice for responding to jury questions and notes. In her order granting the State's motion to supplement, Judge Manis found that none of the attorneys could swear positively that Judge Glanville called them back to court to discuss the two jury questions. She further concluded that all of the attorneys agreed that it was Judge Glanville's customary practice to inform the attorneys of a jury question, summon the parties, and solicit input as to an appropriate response, either at a bench conference or in open court outside the presence of the jury.

With regard to Jury Note 4, Judge Manis found that Judge Glanville called the attorneys back to court to discuss the note, consulted the attorneys, and submitted a response to the jury with the concurrence of the attorneys. Judge Manis determined that this was done at a bench conference. Judge Manis concluded that Appellant was present in court but not at the bench for the discussion of this jury note. She further found that Judge Glanville did not address Jury Note 4 in open court because neither party voiced any objection to the court's proposed response.

With regard to Jury Note 5, Judge Manis found that Judge Glanville called the attorneys back to court to discuss the note, consulted the attorneys, and submitted a response to the jury with the concurrence of the attorneys. Judge Manis determined that this was done in open court with Appellant present.

Finally, with regard to both jury notes, Judge Manis concluded that if the attorneys had not agreed on a response, Judge Glanville would have immediately gone back on the record to permit the parties to state their respective positions and make a ruling. Judge Manis ordered that the transcript be amended to reflect all of these findings.

Appellant first argues that the lack of a complete transcript hampers her right to an appeal.

Because it is critical that the certified trial transcript reviewed by an appellate court speak the truth so that the appellate court can conduct its review with the knowledge that the transcript accurately reflects what took place in the trial court, Georgia law authorizes a trial court to conduct a hearing when a party contends the transcript does not fully disclose what took place and to “resolve the difference so as to make the record conform to the truth.” OCGA § 5–6–41(f).³

State v. Nejad, 286 Ga. 695, 697(1), 690 S.E.2d 846 (2010). In accordance with OCGA § 5–6–41(f), Judge Manis held a hearing and supplemented the record. Therefore, Appellant's argument lacks merit.

Next, Appellant argues that Judge Manis' findings of fact with regard to these two jury notes are clearly erroneous because neither Judge Glanville nor the prosecutors could absolutely recall what each jury note said or what discussions occurred. She asserts that the testimony of the prosecutors and defense counsel conflicted. Because there is no transcript, Appellant contends that the presumption is Judge Glanville did not discuss the two jury questions with counsel.

“Where the correctness of the record is called into question the matter is to be resolved by the trial court.” Patterson v. State, 233 Ga. 724, 731(7), 213 S.E.2d 612 (1975). Judge Manis' findings as to what transpired with regard to the two jury notes are dispositive and not subject to our review. See Nejad, 286 Ga. at 698, 690 S.E.2d 846 (trial court's adoption of the prosecutor's testimony regarding the trial proceedings, in the absence of a record, was dispositive); Smith v. State, 260 Ga. 274(3), 393 S.E.2d 229 (1990) (trial court's adoption of prosecutor's affidavit was dispositive, where the appellant argued that the record was unclear as to the charge conference and the prosecutor's affidavit conflicted with the affidavits of appellant's trial counsel); see also OCGA § 5–6–41(g) (“where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection,” and the parties are unable to agree on the correctness of such a transcript, “the decision of the trial judge thereon shall be final and not subject to review”).⁴

3. Appellant makes several arguments in support of her contention that Judge Manis erred in denying her motion for new trial. Appellant argues that Judge Glanville's discussion of Jury Note 4 with counsel violated her right to be present at a critical part of the proceeding because, although she was in the courtroom, she was not present at the bench. Appellant contends that she was entitled to have the jury note and the court's response handled in open court in her presence and for the court to obtain an affirmative waiver of her right to be present.

“A defendant has the constitutional right to be present at any stage of a criminal proceeding that is critical to its outcome if [his or her] presence would contribute to the fairness of the procedure.” Barrett v. State, 275 Ga. 669, 671, (4), 571 S.E.2d 803 (2002) (citation and punctuation omitted). “Under this standard, a defendant's right to be present is not violated ... by his involuntary absence from the conference held by a trial court with defense and prosecuting counsel to discuss a response to a deliberating jury's substantive inquiry.” Lowery v. State, 282 Ga. 68, 74(4)(b)(i), 646 S.E.2d 67 (2007). Judge Glanville answered the jury's question in the presence of, and with the acquiesce of, all counsel, and he merely referred the jury to the charges already provided. We do not find that Appellant could have made a meaningful contribution to the manner in which Judge Glanville formulated his response or that Appellant's presence could have contributed to the fairness of the procedure. See Campbell v. State, 292 Ga. 766(4), 740 S.E.2d 115 (2013) (the...