Pennie v. State

• Decision Date: 13 September 1999
• Docket Number: No. S99A0553.,S99A0553.
• Parties: PENNIE v. The STATE.
• Court: Georgia Supreme Court

520 S.E.2d 448

271 Ga. 419

PENNIE v. The STATE.

No. S99A0553.

Supreme Court of Georgia.

September 13, 1999.

Brian Steel, Atlanta, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Nancy I. Jordan, Frank R. Cox, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Angelica M. Woo, Assistant Attorney General, for appellee.

THOMPSON, Justice.

A jury found Demetrice Lachelle Pennie guilty of malice and felony murder in the shooting death of her paramour, Edward Charles Pittman. She was sentenced to life in prison for malice murder.¹ Because we conclude that Pennie was deprived of her constitutional right to the courts when certain communications took place with a juror outside her presence and in the absence of a waiver, we reverse.

Viewed in a light most favorable to the verdict, the evidence showed that Pennie was employed by the victim as a freelance computer consultant. Pennie soon began having an affair with Pittman, who was married. Six weeks later, Pittman visited Pennie's home where he was fatally shot.

Pennie waived Miranda rights and gave three custodial statements, each time recounting a different version of the events. She initially denied any involvement in the crime. In her second interview she implicated her neighbor, Alvin Taylor. When it became apparent a month later that her story was inconsistent with evidence at the crime scene, a third interview was conducted. In that interview she admitted shooting Pittman, but claimed she did so after he slapped her and refused to leave her apartment. She admitted walking from the living room to her bedroom, where she obtained a loaded handgun from a closet, removed it from its case, and returned to the living room where she shot and killed Pittman. She stated that the body remained in her living room until later that night when she solicited Taylor's help and the two placed it in the trunk of her car; that the following day she drove her car, along with the body, to Birmingham, Alabama and back to Atlanta, stopping at her office and for various business appointments; and that during the course of that day, she used Pittman's ATM card to withdraw $300 from his bank account. She also claimed that later that night, she and Taylor drove to South Carolina where they disposed of the body by dumping it into Lake Hartwell; that when she returned to Atlanta, she stole a license plate from another vehicle and placed it on Pittman's car to disguise the identity of his vehicle, and she concealed evidence of the shooting by repairing damage to her apartment. It was also shown that she removed a cellular telephone, briefcase and other items from Pittman's car, some of which were later found hidden in her apartment.

The body was subsequently retrieved from Lake Hartwell. The cause of death was a gunshot to the chest which was fired from a minimum distance of one and one-half feet and which entered at a downward angle. Another shot, fired from the same distance, entered the victim's hand through the palm. The medical examiner hypothesized that the first shot could have penetrated the hand, causing the victim to bend over in pain, whereupon the fatal shot was fired downward into the chest.

Taylor testified at trial, denying any knowledge of or involvement in the crime, and accounting for his whereabouts on the days in question.

1. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for a rational trier of fact to have found Pennie guilty beyond a reasonable doubt of malice murder.

2. At the conclusion of the evidence, a juror apparently notified the court that a spectator in the courtroom had attempted to speak to that juror in the hallway. The juror was brought into chambers and was questioned by the court in the presence of both counsel, but in the absence of the defendant. The juror explained that this spectator made eye contact with him and greeted him as he walked by. He added, "I thought I recognized him, and he might have recognized me from somewhere." The juror also stated that he resides in the area where the crime took place and that he also may have recognized the victim from photographs introduced in evidence. When asked by the court if the incident in the hallway would influence his decision in the case, the juror expressed concerns that he may later see the man in his neighborhood and possibly suffer repercussions as a result of his verdict. He was then asked whether he could put these factors aside and decide the case based on the evidence, to which he replied, "I think I can, I'm pretty sure I can." The prosecutor, who had not posed any questions to the juror, declined the court's offer to participate in the inquiry. The juror was then returned to the jury room for deliberations. At that point, defense counsel announced that he waived Pennie's presence at the conference.

In Hanifa v. State, 269 Ga. 797, 807(6), 505 S.E.2d 731 (1998), we reiterated the long-standing rule that embodied

[w]ithin the Georgia constitutional right to the courts [Art. I, Sec. I, Par. XII²] 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.] 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.

Accord Wilson v. State, 212 Ga. 73, 74, 90 S.E.2d 557 (1955) ("[t]his principle has been recognized since the establishment of this Court"). Thus, where the accused is involuntarily absent from the proceedings, the trial judge should have no communications with a juror about the case, except as to matters relating to the comfort and convenience of the jury. Hanifa, supra at 807, 505 S.E.2d 731.

It is true that a defendant may personally waive his right to be present at a stage in the trial, or counsel may waive this right for the defendant. Wilson, supra at 77, 90 S.E.2d 557. But "in order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him." Id. at 77-78, 90 S.E.2d 557. See also Brooks v. State, 271 Ga. 456(2), 519 S.E.2d 907 (1999). Under the facts of this case, we find no such waiver. Both Pennie and her trial counsel testified at a hearing on the motion for new trial that Pennie was not present during the colloquy in chambers. Trial counsel testified that he had never discussed the matter with his client; and that he never sought or received her permission to waive her presence. Pennie testified that she was not aware of the inchambers meeting until after trial when appellate counsel reviewed the transcript; and that she would have elected to be present at the meeting had she known of it.

As in Wilson, supra at 78, 90 S.E.2d 557, the waiver by counsel

was made after the trial had illegally proceeded in the defendant's absence. The defendant had no knowledge of the illegal procedure of the trial or the unauthorized waiver of counsel until after the verdict had been rendered, and [she] repudiated the waiver of counsel ... at the first opportunity.

Since the attempted waiver by counsel was made without the knowledge or consent of the defendant, it was not a valid waiver of her right to be present at all stages of the trial proceedings, guaranteed under Art. I, Sec. I, Par. XII of the Georgia Constitution. Brooks, supra; Hanifa, supra; Wilson, supra; Tiller v. State, 96 Ga. 430(1), 23 S.E. 825 (1895). See generally Perry v. State, 216 Ga.App. 749(1), 456 S.E.2d 89 (1995). Compare Robertson v. State, 268 Ga. 772(4), 493 S.E.2d 697 (1997) (no error found where court asked limited qualifying questions of jury panel in absence of defendant; however practice was criticized); Ferrell v. State, 261 Ga. 115(12), 401 S.E.2d 741 (1991) (pretrial conference, limited in scope to scheduling, is not a critical stage of the proceedings requiring defendant's presence).

Nor do we deem the error harmless. Unless "`the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial.'" Hanifa, supra at 807, 505 S.E.2d 731. Where the juror revealed a possible connection to the victim and expressed concern that his verdict may pose a danger to him in the future, Pennie had an absolute right to be present at the meeting to assist trial counsel in effectively examining the juror. Under Hanifa, her involuntary absence must be presumed prejudicial, and the State offered absolutely nothing to rebut the presumption of harm. See also Wilson, supra at 75, 90 S.E.2d 557 ("[t]o say that no injury results when it appears that what occurred in [defendant's] absence was regular and legal would, in effect, practically do away with this great and important right"); Tiller, supra at 432, 23 S.E. 825 (involuntary absence of defendant at every stage of proceedings "is of sufficient gravity to require the granting of a new trial"); Seay v. State, 111 Ga.App. 22, 25(3), 140 S.E.2d 283 (1965) (colloquy between judge and jury, even though nothing erroneous occurred therein, is itself reversible error when held in the absence of a defendant who has not waived his presence); Miller v. State, 13 Ga.App. 440(2), 79 S.E. 232 (1913) (there should be no communication with a juror outside the presence of the accused "which would tend in any manner to prejudice the accused"). Compare Wanzer v. State, 232 Ga. 523(1), 207 S.E.2d 466 (1974) (mistrial not authorized where defendant involuntarily absent during presentation of motion in chambers but present in courtroom for subsequent questioning of jurors); Burtts v. State, 269 Ga. 402(3), 499 S.E.2d 326 (1998) (where the court denied jury's request to see transcript of testimony without notifying defendant or counsel, the character of...