Sears v. State
| Citation | 270 Ga. 834,514 S.E.2d 426 |
| Decision Date | 15 March 1999 |
| Docket Number | No. S98P1890.,S98P1890. |
| Parties | SEARS v. The STATE. |
| Court | Supreme Court of Georgia |
OPINION TEXT STARTS HERE
Carlton C. Carter, Canton, Tanya Greene, Atlanta, Julian M. Treadaway, Ray B. Gary, Jr., Marietta, for Demarcus Ali Sears.
Benjamin F. Smith, Jr., Dist. Atty., Debra H. Bernes, Jack E. Mallard, Nancy I. Jordan, Asst. Dist. Attys., Marietta, Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Department of Law, Atlanta, for the State. THOMPSON, Justice.
A jury convicted Demarcus Ali Sears of kidnapping with bodily injury and armed robbery, and imposed a sentence of death. The evidence adduced at trial showed that Sears and Phillip Williams kidnapped the victim, Gloria Wilbur, as she left a supermarket in Cobb County, Georgia; that Sears assaulted Ms. Wilbur with brass knuckles, put her in her car and drove north; that Sears raped Ms. Wilbur in Tennessee; and that he killed her in Kentucky by stabbing her with a knife.
In Sears v. State, 268 Ga. 759, 493 S.E.2d 180 (1997), we affirmed Sears' convictions, but remanded the case to the trial court to allow Sears an opportunity to conduct an investigation and present evidence on his claim of jury coercion and misconduct in the sentencing phase. Because the result of the proceedings on remand calls for further appellate review, we now address the remaining enumerations of error. See id. (18), 493 S.E.2d 180.
Each of the remaining enumerations attacks the validity of the jury's verdict and the death sentence entered in this case. Finding no error, we affirm the imposition of the death sentence.
1. After deliberating for approximately six hours in the sentencing phase, the jury sent the trial court a note announcing that it was deadlocked eleven to one in favor of the death penalty, and asking how it should complete the verdict form. Over Sears' objection, the trial court responded to the note as follows:
You all have been deliberating on this case for six hours. I would like you all to consider continuing your deliberations and see what you can do with the case. I'm not putting any pressure on you to [do] anything one way or another. Whatever your decision is, that's [your] decision. But I feel like you need to deliberate on the case longer.
The jury resumed its deliberations and continued deliberating for another three hours. At that point, the jury sent a second note which read:
[W]e have reviewed the case from start to finish and we are still deadlocked eleven to one in favor of the death penalty. All twelve jurors agree that there is a hopeless deadlock with no hope of resolution. Deliberations have ceased. What do we do now? All minds are closed.
Sears urged the trial court to accept the jury's "verdict" and impose a life sentence. The court declined to do so. Instead, it charged the jury, in part, as follows:
I believe it's appropriate to give you some further instructions at this time. You've been deliberating a while, and I deem it proper to advise you further in regards to the desirability of agreement, if possible. This case has been exhaustively and carefully tried by both sides. It has been submitted to you for a decision and verdict, if possible. While the verdict must be the conclusion of each juror, and not a mere acquiescence of the jurors in order to reach agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with proper regard and deference to the opinion of each other. A proper regard for the judgments of others will greatly aid us in forming our own judgments. Each juror should listen to the arguments of other jurors. If the members of the jury differ in their views of the evidence, or the mitigating or aggravating circumstances, such differences of opinion should cause them all to scrutinize the evidence more closely and to re-examine the grounds of their opinion. It's your duty to decide the issues that have been submitted to you, if you can conscientiously do so. Do not hesitate to change an opinion if you become convinced it's wrong. However, you should never surrender honest convictions or opinions in order to be congenial or reach a verdict solely because of the opinions of other jurors.
The jury was then excused for the evening. It reconvened the following morning and resumed its sentencing phase deliberations. After an hour and a half, the trial court informed counsel that one of the jurors had been sitting in the jury room with a Sony Walkman on her head; and that she had been asked to give it to the bailiffs "so she could participate in the deliberations." The court also told counsel that the foreman had asked the bailiffs to remove all magazines and reading material from the jury room. In addition, the court stated that it had received two notes from the jury: one from the foreman and another from juror Angel Fisher. The note from the foreman, which contained blanks instead of personal pronouns to "protect the gender of the juror" in question, read:
In the jury selection process, each juror was read the charges in this case. Murder was not one of the charges. The reason that the juror who has steadfastly maintained [] position from the outset of deliberations has given for [ ] decision is that [ ] cannot vote on the death penalty because the Defendant was not convicted of murder. Can you provide the jury with a transcript of the questions and answers as to their position on the death penalty? We need to know what questions were asked and how the jurors responded. We would also like for you to provide to the jury a definition of perjury and the penalty for the commission of perjury.
The note from Fisher read:
I am concerned about the actions of the foreman of this jury. This letter is in reference to the foreman's most recent letter to you. [The foreman] wrote this letter prior to our jury deliberations today. He informed us that he was submitting the letter to you whether we wanted him to or not. I don't think this type of behavior is appropriate for a foreman. I will not sit on a jury where I am singled out. I am not being treated fairly in this deliberating process. I am also being singled out by the foreman, also he is overstepping his boundaries as a foreman of a jury. To my understanding, a foreman should be a leader, not a dictator. Please explain the duties and responsibilities of a jury foreman. Should he be able [to] question a juror's response to the Court during jury selection?
The trial court brought the jury in and said it had received notes from the foreman and Fisher. It summarized the contents of the notes, and stated that the jury should recall the previous instructions as to the imposition of the death penalty, aggravating circumstances, and mitigating evidence. It then informed the jury that it would not read the voir dire transcript and it would not define perjury. The court went on to clarify the role of a foreman by stating that, although the foreman is responsible for leading the deliberations, "in matters of voting, all jurors stand the same." Finally, the court added:
A juror is responsible to deliberate in the jury deliberations. A juror is supposed to listen to his or her fellow jurors. A juror is supposed to vote their ideas and positions. A juror is supposed to participate. It is inappropriate for any juror to do anything other than fully participate in jury deliberations.
The jury was sent back to deliberate further. Then, after two and a half hours of additional deliberations, the jury announced that it had reached a verdict. The jury entered the courtroom and returned its verdict, finding the alleged statutory aggravating circumstances beyond a reasonable doubt, and sentencing Sears to death. The jury was polled and each juror stated that the verdict was his or her verdict and that it was freely and voluntarily rendered.
Sears contends the trial court coerced the jury to render a verdict of death. Whether a verdict was reached as the result of coercion depends upon the totality of the circumstances. See Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). An examination of the totality of the circumstances leads us to conclude that the verdict was not coerced by the trial court.
The jurors deliberated for more than fourteen hours over a period of three days before reaching their verdict. Each of the jurors stood by that verdict, announcing, upon being polled, that they rendered it freely and voluntarily in the jury room, and that it was still their verdict. See Rouse v. State, 265 Ga. 32, 34(3), 453 S.E.2d 30 (1995). Although the trial court gave a modified Allen charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986)), it cannot be said that that charge was coercive. The court made it clear that, although the jurors should consider the opinions of other jurors, they must never surrender their honest opinions for the sake of expediency. See Romine, supra; cf. Riggins v. State, 226 Ga. 381, 384, 174 S.E.2d 908 (1970) ().
The trial court's other instructions, urging the jury to reach a consensus, and to participate in the deliberations, were not coercive either. They did not put pressure on the jurors "one way or the other," see Romine, supra at 525, 350 S.E.2d 446; they did not exhort "the minority to reexamine its views in deference to the majority, or to suggest that the majority's position is correct." United States v. Norton, 867 F.2d 1354, 1366 (11th Cir.1989). Nor did they urge the jurors Harris v. State, 263 Ga. 526, 528, 435 S.E.2d 669 (1993).
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