Cheddersingh v. State

• Decision Date: 19 March 2012
• Docket Number: No. S11A1929.,S11A1929.
• Citation: 12 FCDR 616,724 S.E.2d 366,290 Ga. 680
• Parties: CHEDDERSINGH v. The STATE.
• Court: Georgia Supreme Court

12 FCDR 616

290 Ga. 680

724 S.E.2d 366

CHEDDERSINGH

v.The STATE.

No. S11A1929.

Supreme Court of Georgia.

Feb. 27, 2012.Reconsideration Denied March 19, 2012.

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Marc A. Mallon, Sheila E. Gallow, Asst. Dist. Attys., Samuel S. Olens, Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Clint C. Malcolm, Asst. Atty. Gen., for appellee.

HINES, Justice.

Soniel D. Cheddersingh appeals his conviction for the malice murder of Michael Walker, Jr., as well as his convictions for aggravated assault, armed robbery, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon.¹ For the reasons that follow, we reverse.

Construed to support the verdicts, the evidence showed that Walker and his cousin, Anthony Mack, Jr., were at the house of a friend. Mack answered a knock at the door and admitted Cheddersingh. Two minutes later, two other men knocked on the door of the home and forced their way inside; one man brandished an AK–47 assault rifle. Cheddersingh produced a .32 caliber handgun. Mack was kicked to the ground, and one of the intruders demanded, “Where the money at?”, and Mack replied that he had $70 upstairs. Cheddersingh shot Walker with the handgun. Mack was forced upstairs and produced the money. The individual with the AK–47 accused Mack of lying about not having more cash, shot Mack in his right-hand side, and fled. Cheddersingh demanded Mack produce more money, told him “We didn't come for nothing,” shot Mack in the left side of his chest, and fled. Mack went downstairs, answered a ringing telephone, spoke with Walker's mother over the telephone, then dialed 911.

1. The evidence was sufficient to enable a rational trier of fact to find Cheddersingh guilty beyond a reasonable doubt of all the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Cheddersingh contends that the preprinted verdict form used erroneously instructed the jury that in order to find him not guilty of the crimes charged, the jury had to do so beyond a reasonable doubt. We agree. Regarding Count one, the verdict form set forth: “As to the offense of Murder (O.C.G.A. § 16–15–1), we the Jury unanimously and beyond a reasonable doubt find the Defendant ________.” Under the blank space were, in smaller type, the words: “Guilty or Not Guilty.” This format was replicated for each of the remaining charges. As to each charge, the jury filled in the word “Guilty.” But, the wording of the verdict form required that for the jury to complete the form by filling in “Not Guilty,” it would have to complete a sentence stating that it found “unanimously and beyond a reasonable doubt” that Cheddersingh was not guilty. Of course, to acquit, a jury is not required to find beyond a reasonable doubt that a defendant is not guilty; rather, the defendant comes to trial presumed to be innocent, it is the State's burden to prove the defendant's guilt beyond a reasonable doubt, and the jury is to acquit the defendant if the State does not do so. See Tillman v. Massey, 281 Ga. 291, 292–294(1), 637 S.E.2d 720 (2006); Bruce v. Smith, 274 Ga. 432, 436(3), 553 S.E.2d 808 (2001); Eckman v. State, 274 Ga. 63, 67–68(3)(a), 548 S.E.2d 310 (2001); Stansell v. State, 270 Ga. 147, 150–151(4), 510 S.E.2d 292 (1998). Specifying that a jury find that a defendant is not guilty “beyond a reasonable doubt” violates these fundamental principles.

In a criminal case, a verdict form is erroneous when

the form would mislead jurors of reasonable understanding, or the trial court erroneously instructed the jury on the presumption of innocence, the State's burden of proof, the possible verdicts that could be returned, or how the verdict should be entered on the printed form.

Rucker v. State, 270 Ga. 431, 435(5), 510 S.E.2d 816 (1999). A preprinted verdict form is treated as part of the jury instructions which “are read and considered as a whole in determining whether there is error.” Brown v. State, 283 Ga. 327, 330(2), 658 S.E.2d 740 (2008) (Citations and punctuation omitted.). Here, the trial court's oral instructions informed the jury that the defendant was innocent until proven guilty beyond a reasonable doubt, and that the burden of proof is upon the State and never shifts to the defendant. Nonetheless, this Court has recognized that “ ‘the presence of ... written instructions in the jury room ... serve[s] to enlighten, rather than confuse, the jury.’ [Cit.]” Howard v. State, 288 Ga. 741, 745(3), 707 S.E.2d 80 (2011). When, as here, the written instructions that the jury has with it in the jury room are infirm, the expected result is not enlightenment, but confusion. Compare Arthur v. Walker, 285 Ga. 578, 579–580, 679 S.E.2d 13 (2009), in which correct written instructions were with the jury during deliberations. We conclude that the verdict form would mislead jurors of reasonable understanding as to the presumption of innocence and the proper burden of proof for the jury's consideration, Rucker, supra, and that this constituted error despite the inclusion of proper language elsewhere in the jury instructions when taken as a whole. See also Laster v. State, 276 Ga. 645, 649–650(5), 581 S.E.2d 522 (2003), in which the court's instructions regarding the verdict form gave improper guidance as to completing the verdict if the jury found that the State failed to meet its burden of proof and were found to be reversible error, requiring a new trial.

However, at trial, Cheddersingh did not raise any objection to the verdict form. Thus, he failed in his duty to “inform the court of the specific objection and the grounds for such objection before the jury retire[d] to deliberate.” OCGA § 17–8–58(a).² Nonetheless, he argues that the verdict form constituted plain error, and that under OCGA § 17–8–58(b), the asserted error must therefore be reviewed. See Sapp v. State, 290 Ga. 247, 249–250(2), 719 S.E.2d 434 (2011).

We first note that the language of OCGA § 17–8–58 refers to the jury “charge.” We conclude that the statute applies not only to instructions given orally to the jury, but necessarily must apply to any written instructions given to the jury. See generally Finley v. State, 286 Ga. 47, 50–51(6)(7), 685 S.E.2d 258 (2009). Preprinted verdict forms have been treated as a portion of the jury instructions. See Brown v. State, 283 Ga. 327, 330(2), 658 S.E.2d 740 (2008). Use of such a form is intended to assist the jury in arriving at a lawful verdict, see Rucker, supra at 434–435(5), 510 S.E.2d 816, and a party is necessarily obligated to raise any objection to such a form as set forth in OCGA § 17–8–58(a). Accordingly, when objection is not made, error is reviewed as provided in OCGA § 17–8–58(b).

In State v. Kelly, 290 Ga. 29, 32–33(2)(a), 718 S.E.2d 232 (2011), this Court noted the similarities between OCGA § 17–8–58(b) and Federal Rule of Criminal Procedure 52(b), and looked to federal cases which articulated and applied the plain error standard found in that Rule. Accordingly, we set forth the test for determining whether there is plain error in jury instructions under OCGA § 17–8–58(b) as follows.

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Id. at 33(2)(a), 718 S.E.2d 232 (Citations and punctuation omitted.).

As noted above, the verdict form used here must be considered erroneous. See Rucker, supra. As to an affirmative waiver of that error, at trial, the court asked: “Is the verdict form acceptable to the defense?” Counsel for Cheddersingh responded: “I believe so. Let me look at it one more time.” No objection was made. But, to constitute an affirmative waiver under Kelly, supra, a “deviation from a legal rule” must have been “intentionally relinquished or abandoned.” As stated in United States v. Olano, 507 U.S. 725, 733(II)(A), 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), upon which Kelly particularly relied, “[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ [Cits.]” The exchange with the trial court does not show that Cheddersingh intentionally relinquished his right to have the burden of proof properly stated in the verdict form; rather, the failure to object is more appropriately described as a forfeiture of the right. See Puckett v. United States, 556 U.S. 129, 138(III)(A), 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009); United States v. Graham, 622 F.3d 445, 455, fn. 9 (6th Cir. 2010); United States v. Mashek, 606 F.3d 922, 930(II)(B) (8th Cir. 2010). Nor can we discern any tactical reason on the part of the defense to embrace such a burden-shifting verdict form. See United States v. Quinones, 511 F.3d 299, 321(E)(4) (2nd Cir.2007). Accordingly, the error in the verdict form was not intentionally waived under Kelly.³

Regarding the second prong of the Kelly test, the error was also obvious and not subject to reasonable dispute. “Nothing is more fundamental to the jury's consideration of a criminal case than its understanding and application of the State's burden of proof beyond a reasonable doubt.” Jones v. State, 252 Ga.App. 332, 334(2)(a), 556 S.E.2d 238 (2001). See...