Sheard v. State

• Decision Date: 07 November 2016
• Docket Number: S16A1291
• Citation: 300 Ga. 117,793 S.E.2d 386
• Parties: SHEARD v. The STATE.
• Court: Georgia Supreme Court

300 Ga. 117

793 S.E.2d 386

SHEARD

v.The STATE.

S16A1291

Supreme Court of Georgia.

Decided, November 7, 2016

Matthew K. Winchester, Law Offices of Matthew K. Winchester, 1800 Peachtree Street, NW, Suite 430, Atlanta, Georgia 30309, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Fulton County District Attorney's Office, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Peggy Ann Katz, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, S.W., 3rd Floor, Atlanta, Georgia 30303, Paige Reese Whitaker, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, N.W., 3rd Floor, Atlanta, Georgia 30303, Meghan Hobbs Hill, Assistant Attorney General, Department of Law, 40 Capitol

Square, S.W., Atlanta, Georgia 30334–1300, for Appellee.

Charles Henry Frier, P.O. Box 8783, Atlanta, Georgia 31106–8783, for Amicus Appellant.

HUNSTEIN, Justice.

Appellant Elliot Sheard was convicted of murder and associated crimes in connection with the stabbing death of Charles Elder. Sheard now appeals, arguing, as he did in his motion for new trial, that missing portions of his trial transcript render his appeal meaningless.¹ In light of a number of factors complicating the absence of portions of the trial transcript, we agree that Sheard is entitled to a new trial and reverse the judgment of the trial court.

Viewed in a light most favorable to the verdicts, the evidence adduced at trial—which was conducted in September and October 1998—established as follows. The victim, Charles Elder, was known to run a successful cash-only bootlegging operation out of his apartment and, as a consequence, maintained a large amount of money in his home. Elder, himself an alcoholic, was prone to brag and display his cash, which was kept in brown paper sacks throughout his apartment. Sheard, along with his co-defendants, Dorothy Grier and Craig Sheard,² were familiar with both Elder's neighborhood and his bootlegging operation, and the three defendants were known to ride around the neighborhood in Grier's white BMW. In the months leading up to Elder's murder, witnesses overheard the co-defendants discussing the idea of robbing Elder and using his money to "get out of town."

On the night of the murder, witness Herbert Burroughs was in the apartment complex visiting his girlfriend and observed the three defendants arrive at Elder's residence in Grier's white sedan. Burroughs observed Sheard and co-defendant Craig Sheard exit the vehicle and enter Elder's residence; Grier drove away, and Burroughs returned to his girlfriend's apartment. Suspecting that something might happen, Burroughs returned to Elder's residence, at which point he observed Craig Sheard "jump" on Elder and stab him in the neck; Burroughs also observed that a light was turned on in Elder's bedroom, heard something fall in the apartment, and then watched the two men exit the apartment with a beige bag and run in the direction in which Grier had driven. According to Burroughs, Craig Sheard was covered in blood and threw a knife in an adjacent yard. A witness described hearing sounds of a "fight" coming from Elder's apartment on the evening of the murder, and an individual matching Sheard's description was seen traveling by foot in the area around the time of the murder.

Days later, Elder was discovered dead with multiple stab wounds

and blunt-force traumas; he had been dead between three and seven days. Elder suffered wounds around his face and neck area, one severing his jugular vein. Elder's apartment appeared to have been searched, and cash and valuables were missing. Police recovered two knives, one in an alley near Elder's apartment and a second in an adjacent yard; the second knife was consistent with Elder's injuries. A later search of Grier's vehicle—which she was no longer seen driving—revealed reddish-brown staining on the rear seat covers, and seat insulation and floorboards appeared to have been saturated with water. Shortly after Elder's murder, Sheard fled to New York, where he was later apprehended. In his statement to police, Sheard acknowledged that he knew the victim but claimed that he left Atlanta with $19,000 to avoid a pending drug charge.

1. The evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Sheard was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Though Sheard contends that Burroughs was an accomplice and, thus, that his testimony required corroboration, see former OCGA § 24–4–8 (now OCGA § 24–14–8 ), there was evidence that Sheard was observed discussing plans to rob Elder, that someone matching Sheard's description was observed in the area at the time of the crime, that Sheard was in possession of a large amount of cash after the murder, and that Sheard had motive to rob Elder. Accordingly, additional evidence corroborated Burroughs's testimony and "justif[ied] an inference that [Sheard] is guilty." Crawford v. State, 294 Ga. 898, 900–901 (1), 757 S.E.2d 102 (2014). See also Lindsey v. State, 295 Ga. 343 (3), 760 S.E.2d 170 (2014).

2. Sheard also argues that he is entitled to a new trial because portions of his trial transcript are unavailable. We agree.

After Sheard's September 1998 conviction and sentence, trial counsel filed a timely motion for new trial, and Sheard was appointed appellate counsel. However, no action was taken on the motion until 2004, when new appellate counsel, William Rucker, was appointed and began researching the motion. Rucker discovered that portions of the trial transcript were missing, and, during the subsequent years, the State, trial court, and court reporter attempted to locate it. Though some portions were recovered, the entire transcript was never located. The transcript as it exists now fails to reflect the proceedings of a Saturday session, during which the jury heard closing arguments and the charge of the court before retiring to deliberate. In its May 2014 order denying Sheard's motion for new trial, the trial court found—based on its own recollection of the 1998 trial and its standard practice—that the closing arguments of the parties were unremarkable, that the transcript of the charge conference established that the jury was adequately and appropriately charged, that testimony recounting a number of questions from the jury was not credible and was, in fact, unlikely, and that it was unlikely the jury was given an Allen³ charge but, if one were to have been given, it would have been a pattern charge.

"A person convicted of a crime has a right to appeal. Such an appellant has a right to a transcript of the trial for use on appeal." Wilson v. State, 246 Ga. 672, 675, 273 S.E.2d 9 (1980) (citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) ). In all felony cases in this State, "the transcript of evidence and proceedings shall be reported and prepared by a court reporter," OCGA § 5–6–41 (a), and "it is the duty of the state to file the transcript after a guilty verdict has been returned in a felony case." Wade v. State, 231 Ga. 131, 133, 200 S.E.2d 271 (1973). A defendant is entitled to have that transcript accurately reflect his trial, see Wilson, 246 Ga. at 675, 273 S.E.2d 9, and courts in this State "have held that the failure of the state to file a correct transcript, through no fault of the appellant, effectively deprives the defendant of his right to...