Byrd v. State
| Decision Date | 02 February 2004 |
| Docket Number | No. S03A1599.,S03A1599. |
| Citation | 277 Ga. 554,592 S.E.2d 421 |
| Parties | BYRD v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Sharon L. Hopkins, Lawrenceville, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Marc A. Mallon, Asst. Dist. Attys.; Thurbert E. Baker, Atty. Gen., Jennifer S. Gill, Asst. Atty. Gen., Atlanta, for appellee.
The appellant, Jimmie Byrd, appeals from his convictions for felony murder, aggravated assault, and the possession of a firearm during the commission of a crime.1 On appeal, Byrd contends that the trial court erred by failing to excuse for cause two prospective jurors, by accepting a partial verdict from the jury, and by failing to charge on self-defense. For the following reasons, we conclude that these contentions are without merit, and affirm the convictions.
1. On the evening of February 16, 1996, Byrd and the victim, Kevin Moton, were involved in a minor traffic accident in the parking lot of an apartment complex. Several eyewitnesses testified that the pair engaged in what seemed like a calm conversation regarding the damage to the vehicles. They further testified, however, that during this discussion, Byrd pulled out a gun, pointed it at Moton, and shot twice, and that Moton fell to the ground. Several of the witnesses stated that they saw several young men come out of some nearby woods and walk across the street, but that they never approached Byrd and the victim. Byrd, however, testified that a group of young men approached him and Mr. Moton in a threatening way and that he (Byrd) pulled back his jacket and showed them that he had a pistol. According to Byrd, the young men then left but came back a few minutes later as he and Moton were still talking. Byrd added that one of the young men was carrying a pistol by his side and that another was approaching with both hands inside his jacket. Byrd testified that he thought he and Moton were going to be robbed and that he fired a warning shot into the ground to scare the young men. Byrd stated that he then raised his arm to aim the gun in the direction of the young men; that Moton was between Byrd and the group; that as he was turning in the direction of the group of young men, he heard a noise behind him; and that as he turned to look, his arm hit the door of the car, causing the gun to fire accidentally, with the bullet hitting Moton. Byrd added that he saw that Moton had been shot, but that to save himself from the young men, he immediately got in his car and left the apartment complex.
A state's expert testified that Moton died from one gunshot wound to the head, with the bullet entering the left eye and exiting on the right side of the back of his head. The expert also testified that the gun was touching Moton's left eye when it was fired.
Having considered the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to support Byrd's convictions.2
2. Byrd first contends that the trial court erred in failing to strike two prospective jurors for cause.
(a) One of the potential jurors in question, Ms. Hendrix, expressed doubts about her ability to set aside her personal experiences in deciding Byrd's case. However, when the prosecutor asked Ms. Hendrix if she would make every effort to decide Byrd's guilt or innocence "based solely upon what you hear during the course of this trial," Ms. Hendrix stated that she "would try." Because a trial court is not required to strike for cause a prospective juror who simply expresses reservations about her ability to set aside her personal experiences;3 because a determination of bias is based on observations concerning a potential juror's demeanor and credibility, which are matters "`peculiarly in the trial court's province'";4 and because Ms. Hendrix never stated a fixed and definite opinion of Byrd's guilt,5 we conclude that the trial court did not abuse its discretion in failing to strike Ms. Hendrix for cause.6
(b) Byrd next contends that the trial court erred by failing to excuse for cause prospective juror Babcock. Babcock initially stated that he generally thought that there was no justification for taking another person's life and that it would cause him great difficulty to apply the law of self-defense to the facts of the case. In response to questioning by the trial court, however, Babcock stated that he would try to comply with the trial court's instructions and apply the law to the facts that he heard in court. For this reason, we conclude that the trial court did not abuse its discretion in failing to excuse Babcock for cause.7
3. Byrd was indicted for malice murder, felony murder, aggravated assault, and the possession offense. In addition to the foregoing crimes, the trial court charged the jury on involuntary manslaughter as a lesser included offense of malice murder. The record shows that the jury had been deliberating for some unspecified period of time8 when it sent a note to the court stating that it had reached a verdict on felony murder, aggravated assault, and the possession offense, but that it was not unanimous on the malice murder count of the indictment. The trial court instructed the jury that it could continue to deliberate or that it could return a partial verdict. The jury continued to deliberate, and after another unspecific period of time, the jury stated that it could not "come to a conclusion" on the malice murder count of the indictment, but reiterated that it had reached unanimous verdicts on the other three counts.9 At that time, the trial court stated that the jury had been deliberating "plenty of time" and that the court would accept a partial verdict on the three counts and dead docket the malice murder count. Byrd objected to accepting the partial verdict.
On appeal, Byrd contends that the trial court erred by accepting a partial verdict on felony murder, aggravated assault, and the possession of a firearm offense. More specifically, Byrd relies on Marshall v. State10 to contend that the trial court's acceptance of the partial verdict improperly curtailed the jury's deliberations on the lesser included offense of involuntary manslaughter. For the reasons that follow, we find no merit to this enumeration of error.
In Marshall, the jury informed the court that it had reached unanimous verdicts on felony murder, aggravated assault, and a possession offense, but that it could not reach a verdict on the malice murder count or the included offense of voluntary manslaughter. Instead of having the jury deliberate further, the trial court accepted a partial verdict and, at the state's request, entered a nolle prosequi on the malice murder count. Significantly, the trial court did not conclude that the jury was deadlocked on the malice murder count. Because a nolle prosequi could not be entered without the defendant's consent once the case had been submitted to the jury, we held that the trial court erred in entering the nolle prosequi. Moreover, we concluded that the error "eliminat[ed] the jury's full consideration of voluntary manslaughter and a possible finding of provocation and passion with respect to the act which caused the killing," and we ruled, citing Edge v. State,11 that the judgment had to be reversed. In this case, tracking the latter language from Marshall, Byrd contends that, by accepting the partial verdict, the trial court improperly eliminated the jury's full consideration of involuntary manslaughter and a possible finding that the killing was done without intent but during an act of reckless conduct.12
We disagree with Byrd's contention. Unlike Marshall, in which the trial court did not permit the jury to continue deliberating after it indicated it had reached a partial verdict, the trial court in this case did not cut short the jury's deliberations on malice murder and involuntary manslaughter. Instead, after the jury indicated it had reached a partial verdict, the court permitted the jury to continue deliberations until the jury informed the court that it could not come to a "conclusion" on the malice murder count. At that point, the trial court concluded that the jury was deadlocked on that count.13 Accordingly, the trial court did not improperly curtail the jury's consideration of malice murder and involuntary manslaughter.
Moreover, if we were to accept Byrd's contention on this point, it would mean that a trial court could not accept a partial verdict on certain counts when another count on which the jury deliberated extensively but could not reach a verdict includes a crime with a less culpable mental state than the counts on which the jury has reached a verdict. So long as the jury is permitted sufficient time to deliberate on the count on which it is deadlocked, we cannot conclude that it is error to accept a partial verdict on the counts on which the jury has reached a verdict.
This rule is illustrated by our recent decision in Curles v. State,14 in which the jury, after some deliberations, informed the trial court that it had reached a verdict on the felony murder count against Curles, but that it was deadlocked on the malice murder count. The trial court accepted the partial verdict on felony murder, gave the jury an Allen charge on the malice murder count, and the jury continued its deliberations. After several more hours, the jury informed the court that it remained deadlocked on malice murder, and the trial court granted a mistrial as to that count. Defense counsel objected to the mistrial. In this regard, the jury had been charged on voluntary manslaughter as a lesser included offense of malice murder, and defense counsel wanted the jury to continue deliberating in the hope that it would find Curles guilty of voluntary manslaughter.15 On appeal, Curles contended that the trial court erred in granting the mistrial. We disagreed, concluding that because the jury had had lengthy deliberations on the...
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