Bell v. State

• Citation: 163 Ga.App. 672,295 S.E.2d 147
• Decision Date: 10 September 1982
• Docket Number: No. 64268,64268
• Parties: BELL v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 147

295 S.E.2d 147

163 Ga.App. 672

BELL v. The STATE.

No. 64268.

Court of Appeals of Georgia.

Sept. 10, 1982.

Rehearing Denied Oct. 1, 1982.

Certiorari Denied Oct. 28, 1982.

Donald C. Turner, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Benjamin H. Oehlert, III, John M. Turner, Asst. Dist. Attys., Atlanta, for appellee.

BIRDSONG, Judge.

Charles Edward Bell was indicted for arson in the first degree, and on a second count for felony murder, arising out of a fire in an abandoned warehouse in which firefighter Scott Duncan died. A mistrial was declared as to Count 2, felony murder; a verdict of guilty was returned as to Count 1, arson in the first degree. Bell appeals. Held:

1. Appellant contends this verdict of guilty as to Count 1 arson in the first degree is fatally infected, and not a lawful verdict. At the end of the first day of deliberation, the jury sent the trial judge a written message stating that it had "come to a decision on count one. On count two, we the jury, cannot agree." Without telling counsel what the verdict was, the trial judge proposed that he could accept the verdict as to Count 1 and either grant a mistrial as to Count 2 or in the morning give a "dynamite" charge as to Count 2. State's counsel indicated he wanted the jury to further deliberate as to both counts. Defense counsel requested the mistrial as to Count 2, but when assured the charge could be tried again, requested a recess until the following morning to advise his client. The trial judge instructed the jury to continue deliberations, which they did for forty minutes more. The trial judge then recessed court for the night, after instructing the jury "not to undertake to obtain any information concerning this matter" and not to discuss the case.

The following morning defense counsel apprised the court that an incorrect and prejudicial article had appeared in the previous evening's newspaper, which stated that a gas station attendant at trial "identified [appellant] Bell as the man he saw rummaging through trash to find an oil can and who eventually purchased 40 cents worth of gas." In fact, at trial the witness could not identify anyone as the man who found the oil can and purchased the gas. Defense counsel moved for mistrial as to both counts after the trial court questioned the jurors individually and determined that six jurors had read the article. These six jurors were not asked any further questions concerning the newspaper article, nor given any instructions; defense counsel, in any case, contended the prejudicial effect of the article could not be cured. The trial court finally decided that the jury had already reached a verdict, and had "written a verdict as to Count 1 on the indictment" the previous day, and since this verdict was guilty it could not have been affected by the subsequent newspaper article. The jury was called back in and simply instructed to retire and determine "if your decision of yesterday [as to Count 1] still stands ... [i]f you felt like you were in a unanimous decision on yesterday, you can make that your verdict; or if you were not unanimous in that decision, then certainly, you do not have to have that as your verdict.... [I]f you had come to a unanimous decision on a count yesterday, then would you please enter that on the indictment.... Determine if the decision you made yesterday was in fact ... unanimous ... and should be entered as a verdict of the jury. If it was, sign it...." The jury was instructed to do nothing as to Count 2. The jury retired. It was dictated into the record that on the previous day the jury wrote on the indictment "we find the defendant guilty of arson in the first degree," but that the statement was not signed by the foreman. This indictment was delivered back to the jury. After about fifteen minutes of consideration, the jury returned and announced that it had reached an unanimous verdict, and that it "was the unanimous verdict of the jury on yesterday afternoon." The trial court entered verdict of guilty as to Count 1 and declared a mistrial as to Count 2.

The legal verdict was returned after half the jury had, contrary to instructions, read a grossly prejudicial newspaper article. However, the judge's logic--that since the "verdict" of guilty was reached before the article was read by jurors, the jury could not have been prejudiced by the article--ultimately is unassailable.

The decision reached the day before was not a verdict under law and was not expressly accepted by the trial court. We held in Irvine v. Grant, 15 Ga.App. 269, 82 S.E. 819: "A verdict is not a verdict in law until received and published in open court. Handley v. McKee, 8 Ga.App. 570, 573, 70 S.E. 94.... Where a jury agree on their verdict, write it out, have it signed by their foreman, and deliver it to the clerk, by the direction and in the presence of the judge, it is published. Ferrill v. Perryman, 34 Ga. 576...." In Handley v. McKee, supra, p. 573, 70 S.E. 94, we said: "The court below did not know judicially that any verdict was ever found by the jury, whatever the individual judge of the court may have subsequently learned.... The information which he got from an inspection of the petition handed to him by the foreman of the jury was information which he received as an individual, and not as a judge of the court. There can be no verdict returned by a jury, unless the same is received and published in open court...." See also Code Ann. § 110-107.

The only legal verdict in this case was published after six members of the jury read a newspaper article stating incorrectly and prejudicially that there was particular evidence of appellant's guilt. (As to infected verdicts and improper jury conduct, see generally Maltbie v. State, 139 Ga.App. 342(1), 228 S.E.2d 368; and see Battle v. State, 234 Ga. 637, 217 S.E.2d 255; Smith v. State, 218 Ga. 216(2), 126 S.E.2d 789; Atlanta Newspapers v. State of Georgia, 216 Ga. 399(2), 116 S.E.2d 580.) It might be argued that the jury's verdict of guilty could have been affected by the improper conduct in reading the prejudicial article, because before the article appeared and was read by half the jury, the trial court expressly declined to accept their decision as to Count 1 as the verdict in the case; and if the article had never existed the jury, the next morning, might very well have deliberated as to Count 1 and 2 all anew and acquitted the appellant or mistried at least. But this is not what happened in the case. The jury reached a decision and returned a "verdict" before the prejudicial article appeared and although the trial...