Smith v. State

• Decision Date: 10 October 2000
• Docket Number: No. S00A1184.,S00A1184.
• Citation: Smith v. State, 536 S.E.2d 514, 272 Ga. 874 (Ga. 2000)
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

536 S.E.2d 514

272 Ga. 874

SMITH v.The STATE.

No. S00A1184.

Supreme Court of Georgia.

October 10, 2000.

J. Robert Joiner, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Wylencia H. Monroe, Assistant Attorney General, for appellee.

SEARS, Justice.

The appellant, Broderick Smith, was convicted and sentenced for the offenses of felony murder, voluntary manslaughter, and the possession of a firearm during the commission of a crime stemming from the shooting death of John Winters.¹On appeal, Smith contends, among other things, that the trial court denied him his right to be present at all critical stages of the trial; that the trial court erred in having him handcuffed before the verdict was announced; and that the trial court should not have sentenced him for both the felony murder and voluntary manslaughter convictions.Because there is only one victim in this case, and because OCGA § 16-1-7(a) prohibits multiple convictions for one crime, we agree that the trial court should not have sentenced Smith on both the felony murder and voluntary manslaughter convictions.Accordingly, we vacate the conviction and sentence for voluntary manslaughter.We conclude, however, that Smith's remaining enumerations of error are without merit.We therefore affirm the trial court's judgment in part and vacate it in part.

1.The evidence would have authorized the jury to find that Winters was killed during a fight with Smith at the intersection

of Hill Street and Memorial Drive in Atlanta.According to several bystanders who witnessed the fight, Smith and Winters started fighting in a car that was stopped in the middle of the intersection.The vehicle then pulled into a nearby Amoco gas station.Smith and Winters continued to fight inside the car, but the passenger door opened, and Smith and Winters fell out of the car.Several witnesses testified that after Winters stopped fighting, Smith stood over him and shot him in the head.According to the witnesses, Smith then took a brown paper bag from one of the victim's pockets and ran from the scene.A police officer arrived at the crime scene almost immediately after the shooting, and saw Smith running from the scene.The officer chased Smith on foot and caught him.The officer testified that Smith had a brown paper bag with cash on him, and that he(the officer) found a pistol on the ground near where he caught Smith.The pistol was determined to be the weapon that fired the shot that killed the victim.

Contrary to Smith's contention, we conclude that the evidence is sufficient to support the convictions.²

2.Smith contends that the trial court denied him his right to be present at all critical stages of the trial when answering a question from the jury.

In this regard, the record contains a document that has a handwritten question that asks, "How do we fill out the jury verdict form for a `guilty of voluntary manslaughter' on Count One?"³Immediately after the question is a signature, which cannot be read, and the date of June 23, 1999, which is the date the jury began deliberating.Just below the signature and date on the document is a handwritten response, stating that "[as] to Count One, simply indicate whether your verdict is guilty, not guilty, or guilty of voluntary manslaughter."The transcript does not contain any discussion of such a question and answer during the jury's deliberations.Moreover, Smith states that he first discovered that this document was in the record when he was preparing his brief for appeal.Smith therefore did not raise any issue concerning the document in his motion for new trial or at the hearing on the motion for new trial.For this reason, there is no evidence in the record regarding who wrote the question on the document or regarding who provided the answer.Smith contends, however, that the document shows that the jury asked the question and that the trial court provided the answer, and that the exchange of this question and answer occurred outside of his presence.Assuming that Smith has adequately demonstrated that this exchange occurred between the trial court and the jury, and assuming that Smith is not procedurally barred from raising the issue,⁴we conclude that Smith is not entitled to a new trial.

We have held that when a trial court improperly communicates with the jury outside the defendant's presence, the error can be harmless if the communication did not materially affect the outcome of the case⁵ or if it did not prejudice the defendant by, for example, hastening a verdict against him or inducing jurors who might be inclined favorably toward the accused to yield their convictions.⁶In the present case, the jurors simply asked the trial court how to record a verdict that they had already reached (voluntary manslaughter instead of malice murder on Count 1 of the indictment), and the trial court, in a written note, merely informed them how to do so.Because the jury's written note to the trial court indicates that it had already reached a verdict, and because the trial court's written response merely told them how to record it, we conclude that there is no reasonable probability that the trial court's note prejudiced Smith.

Accordingly, we conclude that this enumeration of error is without merit.

3.Smith next contends that the trial court erred in ruling that defense counsel had forfeited his right to open and close final arguments by presenting evidence.For the following reasons, we disagree with Smith's contention.

The record shows that, in an attempt to impeach one of the witnesses to the crime, defense counsel handed the witness a statement the witness had given to the police shortly after the crime occurred.Defense counsel stated that it was "Defendant's Exhibit 1," and as defense counsel asked the witness to look at one of the sentences in the statement, the prosecutor objected, asserting that the statement needed to be admitted into evidence.Defense counsel then volunteered that he would introduce the statement for purposes of cross-examination, but not for the purpose of introducing evidence.Defense counsel then read two sentences from the statement in an attempt to impeach the witness.

On cross-examination of another State's witness, defense counsel again attempted to impeach the witness with a prior statement that the witness had given to the police shortly after the crime.Defense counsel stated that he was marking the statement as "D-2," and the prosecutor asked whether defense counsel was "introducing that statement."Defense counsel stated that he was introducing it "for purposes of cross-examination, your honor, so that it may be part of the record."Defense counsel then proceeded to ask the witness about two sentences in the prior statement.

As previously noted, the trial court ruled that by the foregoing action, the defense had introduced evidence and had therefore lost the right to open and close final arguments.We conclude that the trial court did not err in this ruling.

In Kennebrew v. State,⁷the defendant attempted to impeach a witness by playing for the jury the entire tape-recorded statement that the witness had given to the police before trial.The trial court held that Kennebrew had forfeited his right to open and close final arguments, and on appeal, we affirmed.We held that "[a]lthough the tape itself was not formally tendered by Kennebrew, the presentation of the tape's recorded contents to the jury was the equivalent of a formal tender of evidence, divesting Kennebrew of the right to open and close final arguments."⁸We concluded that "under the guise of cross-examination, a defendant cannot be permitted to present evidence to the jury which should otherwise be formally offered."⁹

Shortly after Kennebrew,this Court decided the case of Duckworth v. State.¹⁰There, the issue was whether a defendant has to place a prior written inconsistent statement of a witness into evidence as a prerequisite to impeaching the witness with the prior statement during cross-examination.¹¹We held that the defendant did not have to place the written statement into evidence, but merely had to show the statement to the witness or read the relevant parts to the witness before using it for impeachment.¹²

Thus, under the rationale of Duckworth,a defendant who reads from a prior written inconsistent statement of a witness in order to impeach that witness is not, under the guise of cross-examination,¹³ presenting evidence to the jury that would otherwise have to be formally offered.Accordingly, it would appear that a defendant who cross-examines a witness by reading from the witness's prior inconsistent statement is not introducing evidence within the meaning of our decision in Kennebrew and would not lose the right to open and close final arguments.The Court of Appeals has so held in several cases.¹⁴The Court of Appeals, however, has also concluded that if a defense attorney reads extensively from a prior inconsistent statement and addresses matters other than the prior contradictory matters, the defendant, as in Kennebrew, has effectively introduced evidence during the cross-examination and thus loses the right to open and close final arguments.¹⁵Finally, the Court of Appeals has also held that if a defendant introduces a written statement during cross-examination and makes it a part of the record, the defendant has introduced evidence and loses the right to open and conclude final argument.¹⁶

From the foregoing cases, we conclude that the following standards can be applied to determine whether a defendant has lost the right to open and close: (1) If, under the guise of cross-examination, a defendant reads from the portions of a prior written statement of a witness that are not related to impeaching the witness, ...