Fuller v. State

• Decision Date: 12 January 2004
• Docket Number: No. S03A1665.,S03A1665.
• Citation: 277 Ga. 505,591 S.E.2d 782
• Parties: FULLER v. The STATE.
• Court: Georgia Supreme Court

591 S.E.2d 782

277 Ga. 505

FULLER v. The STATE.

No. S03A1665.

Supreme Court of Georgia.

January 12, 2004.

McGee & McGee J. Baker McGee, Waycross, for appellant.

Richard E. Currie, Dist. Atty., Alexander J. Markowich, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Chad E. Jacobs, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

William Fuller, Jr. appeals from his convictions for felony murder and possession of a firearm during the commission of a crime.¹ The evidence at trial showed that police officers responding to a call that shots had been fired, discovered the body of Oliver Barfield in the parking lot of a church. Barfield had been shot three times by a .22 caliber gun and died of those wounds. After his arrest, Fuller admitted participating in an attempted robbery of Barfield. He claimed when Barfield slapped away another robber's gun and turned towards Fuller, putting his hand in his pocket, Fuller fired one shot at Barfield's feet, and when Barfield began to run towards him, Fuller fired at Barfield until his gun was empty. Police officers recovered a gun determined to be the murder weapon from a location provided by Fuller in his statement.

1. The evidence adduced at trial and set out above was sufficient to authorize a rational trier of fact to find Fuller guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hodnett v. State, 269 Ga. 115(1), 498 S.E.2d 737 (1998).

2. The trial judge went to the jury room and communicated with the jury on two occasions after the close of evidence, accompanied both times by the prosecuting attorney and defense counsel, but without Fuller. The first visit to the jury room, after the jury charge conference, was for the purpose of informing the jury that proceedings would continue beyond 5:00 p.m. and suggesting they make whatever arrangements were necessary for staying late. The second visit, after closing argument, was to explain to the jurors the verdict form jointly drafted by the prosecuting attorney and defense counsel. At the conclusion of each communication, the trial judge summarized the communication on the record and both the prosecuting attorney and defense counsel agreed with the trial judge's summary. Fuller contends on appeal as he did on motion for new trial that the trial judge's discussions with the jury in the jury room denied him the right to be present at all critical stages of his trial. "Within the Georgia constitutional right to the courts is a criminal defendant's `right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.' [Cits.]" (Emphasis omitted.) Hanifa v. State, 269 Ga. 797, 807(6), 505 S.E.2d 731 (1998). In discussing this issue in Hanifa, we made clear our disapproval of judge/jury communication outside the presence of the defendant:

Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused ...; and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial.... [Cits.] We state again: "all communications with the jury are to be discouraged except in open court with all persons present."... [Cits.]

Hanifa v. State, supra, 269 Ga. at 807, 505 S.E.2d 731. While the first communication in the jury room concerned a matter "relating to the comfort and convenience of the jury," and was thus, as Fuller concedes, not prejudicial, we cannot consider the communication regarding the verdict form to be so innocuous. "A colloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present." Hanifa, supra, 269 Ga. at 807, 505 S.E.2d 731.

Like many other rights, however, the right to be present can be waived by failure to object. Id. In Hanifa, supra, 269 Ga. at 808, 505 S.E.2d 731, we found a waiver of appellate review of the issue because the defendant was aware of the judge/jury communication and did not object before verdict. In the present case, Fuller was present in the courtroom when the jury room visits were decided upon and when, after the...