Dixon v. State

• Decision Date: 11 December 2017
• Docket Number: S17A1476,S17A1475
• Citation: 302 Ga. 691,808 S.E.2d 696
• Court: Georgia Supreme Court
• Parties: DIXON v. The STATE. Camps v. The State.

302 Ga. 691

808 S.E.2d 696

DIXON

v.The STATE.

Camps

v.The State.

S17A1475

S17A1476

Supreme Court of Georgia.

Decided December 11, 2017

John W. Howe, for appellant (case no. S17A1475).

Daniel D. Morgan, for appellant (case no. S17A1476).

Rosemary M. Greene, District Attorney, Sharon M. Fox, Andrew D. Garland, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Aimee F. Sobhani, Assistant Attorneys General, for appellee.

Blackwell, Justice.

Bernard Dixon and Arrick Camps were tried by a Bartow County jury and found guilty of malice murder and other crimes in connection with the shooting death of Robert Carr.¹ They appeal, both contending that the trial court erred when it refused to declare a mistrial for prosecutorial misconduct in the cross-examination of a defense witness. They also argue, each for different reasons, that the trial court erred when it refused to grant them new trials based on jury misconduct. We affirm.

1. Viewed in the light most favorable to the jury’s verdict, the evidence at trial shows that Dixon, Camps, and three others—Elizabeth Kelley, Stephanie Gardner, and Rebecca Dover—made plans to rob Carr. The plan originated with Dover; she told Gardner about the opportunity, and Gardner invited Dixon and Kelley to participate. Some time later, Camps also joined the scheme. The robbery was to occur in Cartersville, and so, in the early morning hours of April 7, 2015, Kelley drove Dixon and Gardner from Marietta to a Chevron gas station in Cartersville. There, they met up with Dover and Carr. Dover was highly intoxicated and seemed to have lost interest in the robbery; she instead expressed a desire to play "ding-dings," which apparently are gaming devices similar to slot machines. The group then drove Dover (but not Carr) to a Sunoco gas station down the road to play ding-dings. Dover and Gardner stayed at the Sunoco, and Dixon and Kelly then picked up Camps from his house not far away. When they returned to the Sunoco, Gardner got in the car with Kelley, Dixon, and Camps, and the four drove back to the Chevron to look for Carr with the intent to rob him (Dover had remained at the Sunoco). They did not find Carr at the station but got in touch with him via a cell phone and arranged to meet him outside a nearby hotel.

When the group arrived at the hotel, Gardner invited Carr into the vehicle, ostensibly to take him to rejoin Dover back at the Sunoco, and he sat in the back seat next to Gardner and Camps. But instead of going to the Sunoco, Dixon (who was in the front passenger seat) directed Kelley to drive to a secluded area with what looked like an abandoned warehouse. Dixon then pointed a gun at Carr and told him to get out. Carr obeyed, and Dixon followed him out. After a verbal exchange, Dixon shot Carr in the leg. Dixon then jumped back in the car, and the group drove off. Before going very far, however, Dixon said he forgot to check Carr’s pockets, and then either Dixon or Camps said that they could not simply leave Carr lying there but had to go back and "finish him," as he could identify them. Kelley drove back to where Carr was shot, and she saw him walking and talking on the phone, saying "they shot me, they shot me." Camps grabbed the gun and jumped out of the car. Kelley heard gunshots and then saw Camps standing over Carr, with his arm angled toward the victim. Dixon then urged Camps to get back in the car, and the group drove off hurriedly and went back to Marietta. During the course of the robbery, the group took Carr’s backpack, but it was found to contain little of value. Carr’s body was discovered later that morning. An autopsy revealed that he died of multiple gunshot wounds

to the face, chest, and extremities.

Dixon and Camps do not dispute that the evidence is sufficient to sustain their convictions. Nevertheless, as is our customary practice in murder cases, we independently have reviewed the record with an eye toward the legal sufficiency of the evidence. We conclude that the evidence presented at trial is sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Dixon and Camps are guilty of the crimes of which they were convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Both Dixon and Camps argue that the trial court erred when it refused to declare a mistrial for prosecutorial misconduct. On the fifth day of trial, Camps called a witness who was a close friend of Carr. On cross-examination, the prosecuting attorney asked the witness why he was upset. When the witness replied that he was upset at the death of his "best friend" Carr, the prosecutor asked: "Now, this is a murder trial. Did you see [Dixon and Camps] talking and laughing a while ago?" The witness replied, "Yes I did." The alleged "talking and laughing" referenced by the prosecutor occurred during a break in trial, outside the jury’s presence. The defendants contend that this question by the prosecutor was irrelevant, prejudicial, and impermissibly placed the defendants’ character at issue.

We generally review a trial court’s denial of a motion for mistrial for abuse of discretion. Rivers v. State, 296 Ga. 396, 402 (6), 768 S.E.2d 486 (2015) ; McKibbins v. State, 293 Ga. 843, 848 (3), 750 S.E.2d 314 (2013). "[T]he denial of a mistrial is reversible error only if it appears that a mistrial was essential to preserve the defendant’s right to a fair trial." McKibbins, 293 Ga. at 848 (3), 750 S.E.2d 314 (citation and punctuation omitted). Moreover, with regard to prosecutorial misconduct, OCGA § 17–8–75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

In this case, pretermitting whether the prosecutor’s question was, in fact, improper, the trial court fully complied with OCGA § 17–8–75 and did not abuse its discretion in refusing to grant a mistrial. The defense objected immediately after the cross-examination in question, at which point the trial court held a bench conference outside the jury’s presence and rebuked the prosecutor, telling him that the question was "totally inappropriate" and "it’s not going to happen in this courtroom." The court then brought the jury back, told them that the prosecution had been admonished, and instructed them "to disregard the question or any response that was elicited as a result of that question."

"We ordinarily presume that a jury follows such instructions." Coleman v. State, 301 Ga. 720, 722 (3), 804 S.E.2d 24 (2017). Nothing in this case undercuts that presumption. To the contrary, the trial court specifically asked the jurors to "indicate by raising your hand if you feel that you would be unable to disregard the previous question and response elicited by the State," and none of the jurors raised their hand. In light of the foregoing, a mistrial was not necessary to preserve the defendants’ right to a fair trial. See McKibbins, 293 Ga. at 850 (3) (c), 750 S.E.2d 314 (trial court did not abuse its discretion when it denied a mistrial after improper statement by prosecutor, "especially because the trial court promptly admonished the prosecuting attorney and told the jury to disregard the statement").

3. Both Dixon and Camps ask for a new trial due to juror misconduct. The record reflects the following issues with the jury. On the morning of the fourth day of trial, four jurors came before the court for questioning. Two of the jurors, R. M. and A. H., had expressed concern about a suspicious individual who was observed in the parking lot writing down jurors’ license plate numbers. Camps had raised concerns about two other jurors, juror A. S. and alternate juror S. S., who had been seen talking during the trial. A. S. and S. S. were questioned separately to determine whether they had overheard anything about the suspicious activity and whether the jurors discussed the case among themselves. When A. S. was asked whether there had been "any discussion amongst the jurors about this case, about what’s going on," she replied in the negative, and both defendants said they had no further questions of her. Juror S. S. also denied talking to A. S. (who had sat next to her) about the case, but admitted commenting that Camps’s attorney was "monotonous." S. S. insisted that this was the only comment she made, even when both defense counsel pointed out that they had observed as much as 20 seconds of conversation between her and A. S. during trial.

After a bench conference, both defendants moved for a mistrial and, alternatively, for S. S.’s removal. Dixon moved for the removal of juror A. S. as well. The trial court refused to grant a mistrial, but did remove juror S. S. without objection from the State on the ground that she arrived late for court, slept during trial, and audibly conversed with A. S. But the trial court refused to remove A. S., explaining:

I did observe communication between those two jurors. Now, I don’t know what the communication was. I don’t know if the communication was [A. S.] telling [S. S.], you know, please be quiet, you’re talking too loud. I don’t know what the communication was. But when asked this morning, [A. S.] said here that she didn’t have any conversation about the case. So I’ll just reemphasize that with the jurors again. That’s all I can do.

When the jury was brought back in, the trial court instructed the jurors, among other things, not to talk to each other or with anyone else about the case until they retired for deliberations.

(a) On appeal,...