Brown v. State, 70369

• Decision Date: 03 December 1985
• Docket Number: No. 70369,70369
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

Page 332

339 S.E.2d 332

177 Ga.App. 284

BROWN v. The STATE.

No. 70369.

Court of Appeals of Georgia.

Dec. 3, 1985.

Rehearing Denied Dec. 19, 1985.

Certiorari Denied Jan. 29, 1986.

Christopher A. Townley, Rossville, for appellant.

Michael J. Bowers, Atty. Gen., O. Hale Almand, Jr., Sp. Asst. Atty. Gen., George P. Shingler, Asst. Atty. Gen., for appellee.

BEASLEY, Judge.

Nancy S. Brown was indicted, convicted by a jury, and sentenced for the offense of conspiracy to defraud the state. She appeals from the judgment and from the overruling of her motion for new trial.

1. Defendant claims that the repetitive nature of the charge directing the jury to reach a verdict, especially since it did not remind the jurors not to surrender conscientiously held minority opinions constituted undue pressure or coercion on the jury. If she is correct, the fairness of her trial could have been infected. Anderson v. State, 247 Ga. 397, 401 (3), 276 S.E.2d 603 (1981).

The trial began on March 7, 1984, and was submitted to the jury for consideration eight days later on Thursday evening, March 15.

Near the conclusion of the charge, the court gave the usual counsel on how to conduct their deliberations and deal with differences of opinion and included the following: "Though a juror should not hesitate to change his or her vote when his or her reason and judgment are changed, each juror should vote according to his or her honest judgment, applying the law from the instructions to the facts as proved. It is your duty as jurors to discuss openly with each other and to consult with one another and to deliberate with a view toward reaching a verdict one way or the other, if you can do so consistent with your individual judgments." The jurors were sequestered for the night after approximately two hours. Deliberations resumed the following morning, after the substitution of an alternate for a sick juror, and continued until later afternoon, when the trial court summoned the jurors and gave an "Allen"-type charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The charge given by the court was substantively identical to one which has met with approval. See Spaulding v. State, 232 Ga. 411, 413 (4), 207 S.E.2d 43 (1974). Upon inquiry by the court, both counsel responded that there were no objections.

More than an hour later, the court received a communication from the jury foreman: "The jury is hung and would like a point clarified on the charge of the court...." Deliberations resumed after the court gave the further instruction and continued until about 6:30 p.m., when the jury was once more sequestered for the evening.

On Saturday morning, the court greeted the jurors: "Good morning. This morning we'll resume the trial for which you were impaneled to serve as a jury. I want to point out to you that no better jury would be better qualified to try this case than you now impaneled. I suggest that you go back to the jury room and reason together. I suggest that you review again the evidence together and make every possible effort to reach a verdict which you in good conscience, can subscribe to in your own mind. Return to the jury room and resume your efforts and try every effort to reach a verdict that you, ladies and gentlemen, can subscribe as your own. If you will go back to the jury room at this time, we'll send back the evidence to you in just a moment...."

Subsequently, the jury returned its verdict of guilty.

First, appellant's characterization of the objected-to morning greeting to the jury as being a full-fledged "Allen" charge is dubious. In the context of the chronology and circumstances of the proceeding, it appears to be little more than a reminder to the jury of its general duty and the prior instruction. Assuming it was a second "Allen" charge, we find no abuse either in its content or in its giving.

The decision of whether to give a jury in disagreement such a charge, including deciding the length of time a jury may be allowed or required to deliberate before the charge is given, generally lies within the discretion of the trial court and will not be disturbed on appeal unless there is a manifest abuse of that discretion. Bankston v. State, 169 Ga.App. 955, 956, 957 (2), 315 S.E.2d 671 (1984).

"The issue in reviewing such charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors." McMillan v. State, 253 Ga. 520, 523 (4), 322 S.E.2d 278 (1984).

The fact of repetition, standing alone, would not render the charge coercive. While we have not uncovered a criminal case on that point, we recently found no abuse of discretion in the giving of a second "Allen" charge in a civil case. Georgia Communications Corps. v. Horne, 174 Ga.App. 69, 70 (4), 329 S.E.2d 192 (1985).

We find the court's morning instruction which is the only one complained about, not to be impermissibly coercive either alone or, when considered with the earlier charges, to the degree it was repetitive. Encouraging the jury to reach a verdict if it could, as a way of opening the proceedings on a new day of deliberations for a physically and mentally refreshed jury, cannot be said here to have restricted the freedom of the jury nor borne upon the minds of the jurors so as to induce a decision contrary to the conscience of each. It simply was not of such character. Compare Sanders v. State, 162 Ga.App. 175, 290 S.E.2d 516 (1982).

2. Appellant next maintains that the trial court erred "in charging the jury that they could find venue in Fulton County if the defendant committed any crime therein."

Brown complains of a part of the court's charge on venue during its reinstruction to the jury. This was a virtual repetition of what had been initially charged, to which general charge and recharge she reserved objections.

Appellant contends that as reinstructed, the jury in effect was improperly instructed that venue could be found upon any overt act committed by a co-conspirator in Fulton County, and that no provision of law allows the jury to convict on a conspiracy case by proof that the defendant committed any crime within the county.

The reinstruction on venue was: "Another of the things the State must prove to your satisfaction and beyond a reasonable doubt with regard to the defendant is that the offense charged was committed in Fulton County. With reference to this requirement, you must find either the defendant was personally within Fulton County when she committed any crime, or that although not personally within the county, she aided, abetted, encouraged or conspired to commit those acts which were committed in Fulton County. Where individuals enter into a conspiracy to commit a crime, the actual perpetration by one or more of those persons in furtherance of that conspiracy is, under the law, the act of each of them, regardless of their presence or absence at the time it is committed. Therefore, if you find a conspiracy as I have defined it elsewhere in this charge to have existed, and if you find that any overt act in furtherance of that conspiracy occurred in Fulton County, you would be authorized to find that the defendant is criminally responsible in Fulton County."

A court's charge must be read as a whole in determining whether it contained error. Wood v. State, 243 Ga. 273, 274 (2), 253 S.E.2d 751 (1979). Venue in a conspiracy prosecution is properly laid either in the jurisdiction where the conspiracy was formed or in any jurisdiction wherein a conspirator committed an overt act in furtherance of the conspiracy. Jones v. State, 135 Ga.App. 893, 899 (7), 219 S.E.2d 585 (1975). We do not find that the court's charge taken as a whole could have misled or confused the jury. The total charge clearly does not permit the jury to find venue based on just any crime which may have been committed by Brown in Fulton County or that it was allowed to find venue even if no overt acts occurred in Fulton County. The application of reason and common sense compels the conclusion that it was limited to the criminal act charged in the indictment. Moreover, it is likewise clear from the complete charge on the subject that venue in regard to overt acts meant any such act in furtherance of the alleged conspiracy which might have occurred in Fulton County. See Caldwell v. State, 142 Ga.App. 831, 832, 833 (2), 237 S.E.2d 452 (1977).

3. Brown further alleges that the state failed to prove venue in Fulton County beyond a reasonable doubt.

As noted in Division 2, venue in such a case is properly laid either in the jurisdiction in which a conspirator committed an overt act in furtherance of the conspiracy. Jones v. State, supra 135 Ga.App. at 899 (7), 219 S.E.2d 452.

The indictment charged appellant with conspiracy with Sam Caldwell, Tom Byrd (her immediate supervisor) and other persons unknown, to commit theft of property belonging to the Georgia Department of Labor. Thirty-eight overt acts in furtherance of the conspiracy were listed.

A number of the alleged overt acts related to appellant's submission of time and attendance reports to the Georgia Department of Labor offices in Fulton County and her subsequent receipt of payroll checks which were authorized to be issued and were issued by the Department of Labor in Fulton County. Other acts alleged Brown's submission of travel vouchers to the department and her consequent reimbursement checks from the department's offices in Fulton County. Still others alleged her submission of documents to the department in Fulton County, such documents said to contain false information regarding the performance of her duties.

The transcript contains ample evidence that such documents were submitted to the department in Fulton County and that the checks were issued from Fulton County. This was sufficient to have authorized a rational trier of fact to find venue in ...