Emerson v. State
| Decision Date | 23 March 2012 |
| Docket Number | No. A11A1902.,A11A1902. |
| Citation | 315 Ga.App. 105,726 S.E.2d 600,12 FCDR 1280 |
| Parties | EMERSON v. The STATE. |
| Court | Georgia Court of Appeals |
Derek M. Wright, Atlanta, for Emerson.
Robert D. James Jr., Leonora Grant, for The State.
Omyri Emerson appeals the trial court's denial of his motion for new trial after a jury found him guilty of aggravated assault, unlawful possession of a firearm, obstruction of an officer and carrying a concealed weapon.1 We affirm for the reasons set forth below.
Viewed in the light most favorable to the verdict,2 the evidence showed that in the early morning hours of January 3, 2009, Emerson told his three co-defendants that he “wanted to go out and look for somebody to rob” because he was mad that he had lost money gambling. Emerson and the others got into a gold Lexus belonging to a friend and traveled to the intersection of Chamblee–Dunwoody Road and West Hospital Road where they saw Jesus Mendez riding his bike to work. Mendez was wearing a black backpack containing his lunch and some prescription medicine. The car pulled up next to Mendez, striking him and causing him to fall over. All four men exited the car, and one of them held the “long part” of a gun to Mendez's head while two others tried to turn him over and go through his pockets. Chamblee Police Officer Nick Nixon, who was patrolling in the area, saw the gold Lexus stopped in the middle of the road and approached the scene. When the men saw the police car, they returned to the Lexus, with one man carrying the backpack and Emerson carrying a shotgun, which he placed in the front passenger section of the car.
As Nixon approached, the Lexus drove off “at a high rate of speed.” Nixon saw Mendez down in the intersection along with his bike, but when Mendez saw the police car, he started pointing back at the Lexus and screaming. Nixon then made a U-turn and followed the Lexus, with his blue lights and siren activated. During the short, high-speed chase that ensued, the Lexus hydroplaned off the road and crashed in the adjacent woodline. Emerson and the other men then jumped out of the car and ran, even though even though police instructed them to stop. Nixon and other officers who had joined in the car chase pursued the men, and Emerson and the others were eventually apprehended. Police located Mendez's backpack in the Lexus, along with several prescription pill bottles with Mendez's name on them. A sawed-off shotgun was found laying across the front passenger seat. When Emerson was searched after his arrest, the police also found a set of brass knuckles in his right rear pants pocket.
1. Emerson argues that the trial court erred in failing to grant his motion for a mistrial after the trial court gave supplemental jury instructions he claims rose to the level of judicial coercion. “Whether a verdict was reached as the result of coercion depends on the totality of the circumstances.” Sears v. State, 270 Ga. 834, 837(1), 514 S.E.2d 426 (1999). Accordingly, we must determine whether, considering all the circumstances, the charge was “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). An examination of the totality of circumstances in this case leads us to the conclusion that the verdict in this case was not coerced by the trial court.
Because Emerson's trial counsel raised repeated, cumulative objections and motions for mistrial to various aspects of the jury charge, we must examine the course of the trial in some detail. The record reflects that during the first afternoon of its deliberations, the jury sent the trial judge two separate requests for further instruction. The trial court responded to the first request by re-reading a portion of the earlier charge. Emerson's counsel took exception, arguing that re-reading a portion of the charge unduly and prejudicially emphasized that aspect of the law. He moved for a mistrial based on the re-charge, but the trial court denied the motion. After the second question, the trial court instructed the jury only that they had the law, the indictment and the evidence and they were to decide the case on the law and evidence presented at trial. Emerson's counsel objected to the trial court's wording of this instruction.3
At that point, the trial judge decided to send the jury home because he did not give them “advance notice about staying beyond what I call daycare or childcare hours.” He asked the jurors to make arrangements to stay late for the next two days “if necessary.” The judge then instructed the jurors as to the schedule going forward, with details as to starting and ending times, as follows:
We're going to start at eight-thirty tomorrow. Lunch is going to be between twelve and one. Dinner will be tomorrow between six and seven. The way I operate, the day doesn't end until midnight. Friday, we'll go at eight-thirty on Friday. Lunch will be from twelve to one on Friday. Dinner will be from six to seven on Friday. We will do Saturday and Sunday if necessary. The schedule on Saturday will be very similar. We will start at eight-thirty on Saturday and we will convene on Sunday at eight-thirty if needed. Now, with that instruction, you have tonight to make whatever arrangements you need to make....
After the jury was excused, the trial court asked counsel for any exceptions based upon the instructions he had just given. The State raised no objection, and Emerson's counsel “incorporated” the arguments and objections he had made earlier, re-asserting his motion for a mistrial. The trial court again denied the motion. Emerson's counsel raised no objection, however, to the trial court's instructions regarding scheduling.
But the next day Emerson filed a written motion for a mistrial based upon these scheduling instructions, arguing that the charge had the effect of telling the jury that they had to stay until they reached a verdict, which was “tantamount to charging that even in the event of any conscientious and irreconcilable difference of opinion between the jurors,one or more jurors would be required to surrender his view in order to reach a verdict.”
As an alternative to a mistrial, Emerson requested curative instructions to clarify that the trial court was not threatening to confine the jurors until they reached a verdict. The trial judge indicated that he would give a curative instruction, stating The trial judge then stated for the appellate record that he had outlined the schedule for the jurors, as a matter of “basic courtesy,” to allow them to make any arrangements they need to make if the deliberations extended past regular working hours. Emerson's counsel raised no further objection to the trial court's statement regarding the law or the scheduling instruction he had given. The judge and counsel then turned to a discussion of the jury's third request for additional instruction, and Emerson's counsel excepted to the trial judge's statement of what he intended to charge the jury in response to that request.
When the jury returned to the courtroom, the trial court gave the following curative instructions regarding the prior day's scheduling notice:
[J]ust to give some other clarity, I just want to make sure—the purpose of giving you a timeframe on things [was] just for you to arrange your, for lack of a better term, your personal affairs so you would know where you would be. Not to necessarily—you can make any decision that you make. But I just wanted to give you some timeframe, because some of you may have child care issues and arrangements so that you could make those. That's the only purpose of that. With that said—and also, let me just say any decision that you make is purely your decision as a jury.
And as discussed more thoroughly in Division 2, infra, the court also gave the jury the supplemental instruction in response to the third question, as to which Emerson's counsel had previously excepted. Afterward, the trial judge asked counsel for any exceptions. The State had none, but Emerson's counsel replied, “Judge, just incorporating by reference all my other objections, I'll for the record move for mistrial at this point, for the same reasons I've already put on the record.” 4 The trial court again denied the motion. The jurors continued deliberating until the judge sent them home for the evening.5 The jury announced the verdict after returning the next day, and each juror affirmed the verdict when the jury was polled.
In denying Emerson's motion for new trial on this ground, the trial court found that Emerson waived any issue regarding the scheduling instructions by failing to raise a contemporaneous objection. Under OCGA § 17–8–58, Emerson was required to raise his objection before the jury retired to deliberate, and the failure to do so precludes appellate review of the issue unless the charge constitutes plain error. Here, the jury arrived the next day, and presumably began deliberations, one hour before the lawyers were scheduled to arrive and court began for the day, so the written motion for mistrial presumably was made after deliberations had already begun.
But pretermitting whether Emerson waived this argument by failing to raise a timely objection, we find no error, plain or otherwise, in the trial court's scheduling charge. The charge merely set out the court's time schedule for conducting jury deliberations, so the jurors could plan ahead. The charge made clear that the schedule would be followed only if necessary, and the trial judge further clarified in the curative instruction that he in no way intended to influence the jurors' deliberations. T...
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