Herring v. State

• Decision Date: 07 February 1997
• Docket Number: No. A96A1989,A96A1989
• Citation: 224 Ga.App. 809,481 S.E.2d 842
• Parties: , 97 FCDR 489 HERRING v. The STATE.
• Court: Georgia Court of Appeals

Page 842

481 S.E.2d 842

224 Ga.App. 809, 97 FCDR 489

HERRING v. The STATE.

No. A96A1989.

Court of Appeals of Georgia.

Feb. 7, 1997.

Reconsideration Denied Feb. 25, 1997.

Certiorari Denied May 30, 1997.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, Norcross, for appellant.

Daniel J. Porter, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

BEASLEY, Judge.

Herring was convicted by a jury for kidnapping with bodily injury, OCGA § 16-5-40, and aggravated assault with an automobile console lid, OCGA § 16-5-21. He was acquitted of other charges, and his motion for new trial was denied.

The evidence is viewed in a light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; in addition, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Howard v. State, 261 Ga. 251, 252, 403 S.E.2d 204 (1991); King v. State, 213 Ga.App. 268, 269, 444 S.E.2d 381 (1994).

Herring and his wife had been married eight months at the time of this incident, and she was two months' pregnant. They had an argument, and Herring threw a wine glass at her while she was bathing. She went to the bedroom, and he punched her in the face. She attempted to defend herself with a baseball bat, but he grabbed it and struck her on the face with it. Herring left their home, and Mrs. Herring went to the apartment of neighbor Hollis and made a "911" call.

Herring went to Hollis' apartment and asked to speak to his wife. Mrs. Herring agreed, but when she stepped outside, Herring put her in a "head lock" and dragged her down three flights of stairs, opened the driver's side door, threw her in, and drove off. He repeatedly hit her, including striking her on the face with the console lid from their car. Mrs. Herring suffered a broken nose and other serious injuries including a miscarriage.

Knowing that Herring was without money, Mrs. Herring persuaded him to return to their apartment on the pretext of giving him money. Herring covered her head with a towel to conceal her wounds, and the two walked up the back steps. A police officer was waiting on the second floor. Mrs. Herring ran to him, and Herring ran in the opposite direction but was arrested at his home the next day.

1. In his first enumeration of error, Herring alleges the trial court abused its discretion by excusing a juror. The case was in the middle of trial, and the court took an overnight recess until 9:00 a.m. the following morning. The State had rested, and the defense had two witnesses remaining to testify, including Herring. The juror telephoned the court to say he had experienced mechanical difficulties with his truck on the way to court and would be unable to appear on time for the trial, but would call back as soon as possible to let the court know his progress. When the juror had not called back by 9:35 a.m., the court replaced the missing juror with an alternate and resumed the trial, over Herring's objection.

The juror subsequently called from work, near the repair shop where his truck was being serviced, and informed the court it would not be ready until later that afternoon. He provided the court with his work number and indicated a desire to continue as a juror. During the morning recess and after the juror had already been replaced, the court contacted the juror to instruct him that he must either come to the courthouse voluntarily or be transported by a deputy sheriff on a bench warrant.

After the charge conference at the end of the evidence presentation, the sheriff brought the juror into the courtroom. He told the court his truck was taken to the nearest repair shop between 8:30 and 8:45 and was currently being serviced. He indicated that when he called from the repair shop and spoke with courthouse personnel, he was told to call back in an hour or so. The juror then telephoned work. His employer permitted a co-worker to come to the repair shop and transport the juror to work, but would not allow the co-worker to transport the juror to the courthouse. The juror indicated he did not know the court could send a sheriff's car for him that morning, and if he had known, he would have requested it. The juror's explanation was confirmed.

Herring contends the court erred in failing to investigate before dismissing and replacing the juror or to wait to hear directly from the juror regarding his situation, and that no good cause was established to excuse the juror.

OCGA § 15-12-172 provides: "If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated."

This Code section implicitly authorizes the trial court to exercise its discretion. Baptiste v. State, 190 Ga.App. 451, 453(2), 379 S.E.2d 165 (1989). But it must be an informed exercise, Scott v. State, 219 Ga.App. 798, 799(2), 466 S.E.2d 678 (1996), since "the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law." Peek v. Kemp, 784 F.2d 1479, 1483(2) (11th Cir.1986). See also United States v. Jorn, 400 U.S. 470, 484(II), 91 S.Ct. 547, 556-57, 27 L.Ed.2d 543 (1971). " 'There must be some "sound" basis upon which the trial judge exercise(s) his discretion' to remove the juror. [Cit.] Dismissal of a juror 'for want of any factual support, or for a legally irrelevant reason' is prejudicial. [Cit.]" Green v. Zant, 715 F.2d 551, 555 (11th Cir.1983).

The court did not abuse its discretion. It had no information at the time the trial was set to proceed as to where the juror was, how long he would be without transportation, or when he would be able to return to court. Information discovered after replacement, that the juror would have been able to continue serving if the sheriff fetched him, does not change this conclusion. The court did not have to keep everyone waiting (beyond the 35 minutes they did wait) for an indeterminate period of time for the juror to report.

This is not a situation where the jury was deadlocked or had begun deliberations, when the need for investigation and the possibility of harmful error are heightened. See Hill v. State, 263 Ga. 37, 41(8), 427 S.E.2d 770 (1993); Scott, supra; Stokes v. State, 204 Ga.App. 141, 142(1), 418 S.E.2d 419 (1992). Herring "has not shown how he was prejudiced by the use of an alternate, since pursuant to OCGA § 15-12-169 alternates are selected in the same manner and must have the same qualifications as members impaneled as the jury. 'The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.' [Cit.]" Forney v. State, 255 Ga. 316, 317(1), 338 S.E.2d 252 (1986). Replacing the juror "had no more effect of denying [Herring] a qualified jury than if the juror had become ill or died. The alternate juror statute was designed to alleviate situations such as these." Neal v. State, 160 Ga.App. 834, 837(2), 288 S.E.2d 241 (1982).

2. The second enumeration is that the court allowed the State to violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in failing to disclose certain memoranda of meetings the prosecutor had with Mrs. Herring before her testimony at Herring's bond reduction hearing and at trial, and that the court erred in denying his motion for mistrial on this ground.

Mrs. Herring testified at the bond hearing, when it was possible Herring would gain release, that she voluntarily went to the car with her husband and that he struck her in self-defense and only to avoid an accident after she grabbed the steering wheel. Bond was set at $30,000 cash. Herring was unable to post bond. At the hearing on the motion for reduction, Mrs. Herring testified that she did not voluntarily get into the car, nor did Herring strike her in self-defense or to avoid having a crash.

Herring argues that an important component of his defense was the victim's inconsistent sworn testimony. He contends one basis for the change in testimony between the original bond hearing and the bond reduction hearing was the pendency of a forgery case prosecution by the same district attorney's office. Although the investigating officer recommended indictment, Mrs. Herring's case had not been prosecuted by the time her husband's case came to trial.

Herring learned of meetings between the prosecutor and Mrs. Herring during trial after an in camera inspection of the State's file, when the court supplied Herring with copies of documents discussing the forgery case and the decision to dismiss it. Herring argues he was harmed because the jury could not hear about the meetings relating to the disposition of the charges against Mrs. Herring, which would have caused her to change her testimony and affected her credibility. He maintains he was further harmed by the court quashing the subpoena served on the prosecutor in an attempt to elicit this evidence for the jury to consider in evaluating her credibility.

Herring cites Hines v. State, 249 Ga. 257, 259-260(2), 290 S.E.2d 911 (1982), in which the Supreme Court determined from its reading of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (197...