Huff v. State

• Decision Date: 04 February 2022
• Docket Number: A21A1539
• Parties: HUFF v. The STATE.
• Court: Georgia Court of Appeals

362 Ga.App. 477

869 S.E.2d 106

HUFF

v.The STATE.

A21A1539

Court of Appeals of Georgia.

February 4, 2022

Brouse Law, Karen H. Brouse, for Appellant.

Leigh Ellen Patterson, District Attorney, Rome, Leah Cristina Mayo, Assistant District Attorney, for Appellee.

Reese, Judge.

Kaylee Huff appeals from an order of the Superior Court of Floyd County, denying her amended motion for new trial after a jury found her guilty of two counts of armed robbery, four counts of aggravated assault, and one count of possession of a firearm during the commission of a felony.¹ Huff argues that the trial court erred by not instructing the court reporter to transcribe the entirety of the trial proceedings, including voir dire and jury selection; committed plain error by having a bench conference outside her presence without her waiving her right to be present; and abused its discretion by denying a mistrial. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the verdict,² the record shows the following. Anthony Friedman and G. C. were friends who lived in the same neighborhood and worked together. On July 14, 2019, Friedman and G. C. left together in Friedman's car, ultimately stopping at an abandoned house, where they were approached by a group of people and forced out of the car at gunpoint.

Friedman grabbed a long gun that was pointed at him and held onto it, believing he was about to be killed. Multiple assailants then beat Friedman, who was holding onto the gun, which went off near Friedman's car. A female assailant, later identified as Huff, held a gun to G. C.’s head and told him that he would die if he moved or tried to help Friedman. During the beating of Friedman, the assailant with the long gun kept referring to himself as "Smiley." Huff and the other assailants robbed Friedman and G. C. of personal property, including phones, wallets, cash, and shoes.

After the robbery and beating of Friedman, Huff and the other assailants told the victims to get in their car and leave. As Friedman drove away, the assailants shot out the back window of Friedman's car. Once he was home, Friedman called 911 to report the robbery.

Rome police officer Robert Groover responded to the call and met with the victims, who gave him a description of the assailants. Shortly thereafter, Groover spoke to an informant, who identified "Smiley" as Christopher Haywood and told Groover where Haywood lived, which was less than 100 yards from where the robbery occurred. Groover drove to the residence, where he witnessed a woman matching the description of the female assailant "fle[e] the scene" in a silver Toyota passenger car. Groover could see that the car had several passengers, one of whom matched the description of one of the other assailants. Groover radioed a Be on the Lookout ("BOLO") for the vehicle, with descriptions of its occupants, including the name of Christopher Haywood, and giving the vehicle's location and direction of travel.

Minutes later, another officer initiated a traffic stop on the vehicle, which Huff was driving, and detained her, Christopher Haywood, co-defendant Denzel Haywood, and a third male occupant. The officer recovered from the vehicle a twelve-gauge bolt-action shotgun, a nine-millimeter cartridge, and spent shell casing for the shotgun. A Rome police investigator later executed a search warrant at the home shared by Huff and Christopher Haywood and discovered a rifle bag containing Friedman's stolen phone and bank cards.

Huff and co-defendants Christopher Haywood and Denzel Haywood were tried together. After the jury found Huff guilty of seven of the nine charges against her, she filed an amended motion for new trial, which the trial court denied after a hearing. This appeal followed.

"If counsel raise issues on appeal relating to voir dire, they also must transcribe the voir dire in order for there to be an appellate review, as an appellant carries the burden of showing error by the record."³ Where a party fails to object to an evidentiary ruling at trial, we review such rulings for plain error.⁴

"The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with."⁵ With these guiding principles in mind, we turn now to Huff's claims of error.

1. Huff argues that the trial court abused its discretion and plainly erred when it failed to instruct the court reporter to take down the entirety of the voir dire and jury selection portions of the trial. Although she concedes that the trial court followed "longstanding, established precedent of the Georgia Supreme Court and [this Court]," she "submits that Georgia courts across the board are improperly denying Appellants the right to a complete transcript of trial proceedings which by statutory definition and case precedent includes the voir dire proceedings."

OCGA § 17-8-5 (a) provides in relevant part: "On the trial of all felonies the presiding judge shall have the testimony taken down[.]"⁶ Further, under the Appellate Practice Act,⁷

[w]here a trial in any civil or criminal case is reported by a court reporter, all motions, colloquies, objections, rulings, evidence, whether admitted or stricken on objection or otherwise, copies or summaries of all documentary evidence, the charge of the court, and all other proceedings which may be called in question on appeal or other posttrial procedure shall be reported; and, where the report is transcribed, all such matters shall be included in the written transcript, it being the intention of this article that all these matters appear in the record. ...⁸

In Allen v. State⁹ , the Supreme Court of Georgia recently reaffirmed its precedent that, for defendants in non-death-penalty cases, OCGA § 17-8-5 (a) does not require a court reporter to take down or record the entirety of voir dire. The court noted that in State v. Graham ,¹⁰ it had evaluated the predecessor statute to OCGA § 17-8-5 (a) and "held that the term ‘proceedings’ referred to ‘objections, rulings and other matters which occur during the course of the evidence as well as any post-trial procedures,’ and that the statute's requirement was met [where] the record contained the objection and court ruling made during voir dire."¹¹

As in this case, the appellant in Allen "argue[d] that Graham ’s interpretation of ‘proceedings’ [was] no longer good law, citing several instances in which the United States Supreme Court and our Court of Appeals ... referred to voir dire as a proceeding."¹² The Allen court rejected that argument.¹³ As here, none of the decisions the appellant cited actually held anything about when voir dire had to be recorded.¹⁴ Because the Allen court found "no compelling reason to reconsider Graham ’s statutory construction[,]"¹⁵ we affirm.

2. Huff argues that the trial court plainly erred in failing either to invite her to participate in a bench conference to strike the jury or to inquire whether she waived being present at the conference.

As Huff notes, the trial court did inquire whether Huff and each of her co-defendants waived the right to be present at bench conferences. Specifically, before the trial court administered the oath to the jury and gave preliminary instructions and before counsel made opening statements, the trial court requested counsel to "confirm on the record that [their] clients [were] in agreement that if a side bar [was] requested and allowed [they] could proceed to discuss the case outside [the defendants’] presence." Huff's attorney responded that both he and Huff were "fine with it." Huff complains, however, that the trial court should have made this inquiry earlier, prior to the early bench conferences during voir dire and jury selection.

Embodied within the 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. Violations of this due process right are presumed prejudicial, and, absent a waiver by the defendant, require a new trial....

The right to be present attaches at any stage of a criminal proceeding that is critical to its outcome if the defendant's presence would contribute to the fairness of the procedure. Thus, a "critical stage" of a criminal proceeding is defined as one in which the defendant's rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way. Proceedings during which the jury is selected or modified, for example, are a critical stage at which the right to be present attaches. On the other hand, pre-trial hearings and bench conferences pertaining to purely legal issues, such as the admissibility of evidence or jury instructions, ordinarily do not implicate the right to be present.¹⁶

As discussed in Division 1, supra, the voir dire in this case was not transcribed in its entirety. However, the record indicates that the attorneys all agreed on the record that the jurors appeared to be statutorily qualified. After Denzel Haywood's attorney questioned one potential juror on the record, the trial court dismissed the juror with the consent of Huff's attorney. Similarly, after Huff's attorney questioned another prospective juror on the record, the trial court granted Huff's request to excuse that juror. Counsel then approached the bench, where they used some of their peremptory strikes to select the jury. Back on the record, the trial court called the selected jurors and then immediately dismissed them for lunch recess and resumed a hearing on Huff's motions to suppress.

Huff never voiced any disagreement with the jury selection during the motions hearing nor during the ensuing three-day trial, including when her attorney confirmed...