Newsome v. State, A13A0569.

Decision Date15 July 2013
Docket NumberNo. A13A0569.,A13A0569.
Citation747 S.E.2d 99,323 Ga.App. 15
PartiesNEWSOME v. The STATE.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Jackie Glenn Patterson, Atlanta, Attorney for Appellant.

Tommy Kenneth Floyd, James Luther Wright III, David Eugene Slemons, Attorney for Appellee.

RAY, Judge.

Wehman Newsome appeals from the denial of his motion for new trial and the judgment of conviction entered on a jury verdict finding him guilty of “drug possession, sale, manufacture, with the intent to distribute.” On appeal, Newsome asserts the following errors: (1) that the trial court erred in failing to strike a juror for cause; (2) that the evidence was insufficient to convict Newsome under the “equal access” doctrine; (3) that the jury's verdict form was unclear and found him guilty of crimes for which he was not charged; and (4) that his trial counsel rendered ineffective assistance by failing to object to the form of the verdict. For the following reasons, we reverse the judgment and remand the case to the trial court for a new trial.

1. We find that the evidence presented at trial was more than sufficient to allow the jury to properly convict Newsome under the lesser-included offenses as properly charged.

2. Newsome contends that the jury's verdict was illegal because it found him guilty on counts with which he was not charged. We agree.

Newsome was indicted and tried before a jury on the charge of trafficking in cocaine. After the close of evidence, the trial court instructed the jury on the charged offense and the lesser-included offenses of possession of cocaine and possession of cocaine with intent to distribute, and gave complete instructions on the presumption of innocence and the State's burden of proving guilt beyond a reasonable doubt. The jury was presented with a pre-printed jury form that provided that the jurors could find Newsome guilty or not guilty of trafficking cocaine, but the form did not provide for the lesser-included offenses charged by the trial judge. After deliberating for some time, the jury asked the following question: [h]ow do we record a lesser charge on the verdict sheet?” The trial court instructed the jury that if they wished to find Newsome guilty of the charged lesser-included offenses, they were to strike out the words “trafficking in cocaine” from the pre-printed verdict form and hand-write either “possession of cocaine with intent to distribute” or “possession of cocaine.” The jury was sent back for further deliberations, and they then returned a partially hand-written verdict form stating: [W]e the jury, find the Defendant ... Guilty [of] drug possession, sale, manufacture, with the intent to distribute.” The jury foreman orally stated that the jury found Newsome not guilty as to the offense of trafficking in cocaine. Counsel for both the defense and the prosecution were allowed to examine the verdict form. No objections were made by the prosecution or the defense counsel, and it was published in open court. The trial court then dismissed the jury.

At Newsome's sentencing hearing, the trial court determined that the language of the jury's verdict form meant that they intended to find Newsome guilty of possession with intent to distribute. Newsome was then sentenced on that charge to thirty years, with fifteen to serve in custody and the balance on probation.

In State v. Freeman, 264 Ga. 276, 444 S.E.2d 80 (1994), our Supreme Court held that

[j]urors have a duty to take the law from the trial court's instructions and apply it to the facts which they determine from the evidence adduced at trial ... [and] it is the duty of the trial court not only to tell the jury what the law is, but to insist that they apply it and either render a verdict on some issue submitted or else make a mistrial.

(Citations and punctuation omitted.) Id. at 277, 444 S.E.2d 80. The Freeman Court further held that the trial court “has a duty to insist on a legal verdict, that is, a verdict responsive to the issues as framed by the indictment or...

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4 cases
  • Washington v. State
    • United States
    • United States Court of Appeals (Georgia)
    • July 16, 2015
    ...thus, trial court properly instructed jury to continue deliberating).33 Freeman, 264 Ga. at 278, 444 S.E.2d 80 ; accord Newsome v. State, 323 Ga.App. 15, 17(2), 747 S.E.2d 99 (2013).34 Freeman, 264 Ga. at 278, 444 S.E.2d 80 ; see Wade v. State, 261 Ga. 105, 107–08(6), 401 S.E.2d 701 (1991) ......
  • Washington v. State, A16A1430
    • United States
    • United States Court of Appeals (Georgia)
    • November 15, 2016
    ...to strike through "not guilty" on the verdict form after the jury had been dispersed. See OCGA § 17–9–40 ; Newsome v. State , 323 Ga.App. 15, 17, 747 S.E.2d 99 (2013) . Accordingly, "[b]ecause the trial court in this case did not so intervene before the dismissal of the jury, a new trial is......
  • Hughes v. State, A13A0553.
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 2013
  • Ward v. Ward
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 2013
    ...a declaratory judgment action arguing that the stock warrant was void because it was issued prior to Southern Pan's incorporation. [747 S.E.2d 99]Id. at 401, 369 S.E.2d 239. Our Supreme Court found that the stock warrant was enforceable because the evidence was undisputed that the individua......

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