NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 9, 2024
S24A0094. MAYO v. THE STATE.
COLVIN, Justice.
Appellant Justin Scott Mayo appeals his convictions for malice
murder and other crimes related to the beating death of his
girlfriend, Stephanie Smith. 1 Appellant argues that the trial court
1Smith died on November 4, 2017. On December 19, 2017, a White
County grand jury indicted Appellant for one count of malice murder (Count
1), one count of felony murder (Count 2) predicated on a count of aggravated
assault (Count 3), and an additional two counts of felony murder (Counts 4 and
6), each of which was predicted on a separate count of aggravated battery
(Counts 5 and 7). Appellant was tried by a jury from March 2 to March 6, 2020.
Following the close of the State’s evidence, the trial court granted Appellant’s
motion for directed verdict as to Counts 4 through 7, thereby acquitting
Appellant of two counts of felony murder and the two counts of aggravated
battery on which those felony murder counts were predicated. On March 6,
2020, the jury found Appellant guilty of all the remaining counts: malice
murder (Count 1), felony murder (Count 2), and aggravated assault (Count 3).
On March 10, 2020, Appellant was sentenced to life in prison without the
possibility of parole for malice murder (Count 1). Though the trial court
purported to merge Counts 2 and 3 into Count 1, Count 2 was actually vacated
by operation of law. See Williams v. State 316 Ga. 147, 153 (3) (886 SE2d 818)
(2023).
On April 1, 2020, Appellant filed a timely motion for new trial, which he
committed two reversible errors: (1) the trial court presented the
jury with a “confusing” verdict form that was inconsistent with the
jury charge; and (2) the trial court received and responded to a note
from the jury during its deliberations without informing the parties,
thereby depriving Appellant of his right to be present throughout
the proceedings against him under Article I, Section I, Paragraph
XII of the Georgia Constitution and his right to effective assistance
of counsel under the Sixth Amendment of the United States
Constitution. 2 For the reasons stated below, Appellant’s claims fail.
subsequently amended through new counsel on August 10, 2020, and again on
October 25, 2022. Because Appellant’s motion for new trial concerned the trial
judge’s ex parte communication with the jury, Appellant filed a motion to
recuse on April 17, 2020, which Appellant supplemented with an additional
filing on the same day. Appellant’s motion to recuse was granted on May 9,
2022, and a different judge was appointed to hear Appellant’s motion for new
trial. Following the subsequent judge’s appointment, the trial court held a
hearing on Appellant’s motion for new trial on November 22, 2022, and denied
it by written order on January 27, 2023. On February 24, 2023, Appellant filed
a timely notice of appeal directed to this Court. The case was assigned to the
term of this Court beginning in December 2023, and decided on the briefs.
2 Appellant never states expressly whether his claims arise under the
United States Constitution or the Georgia Constitution. Though he does not
cite either constitution, Appellant avers in his brief that he “raised both the
state and federal constitutional violations of Lowery [v. State, 282 Ga. 68 (646
SE2d 67) (2007)] and the failure to follow this Court’s Lowery procedures”
during the hearing on his motion for new trial. Lowery concerned a defendant’s
right to be present at trial under the Georgia Constitution and his right to
2
1. At approximately 2:00 p.m. on November 4, 2017, Appellant
entered the White County Sheriff’s Office and told the detention
officer at the front desk that he thought his girlfriend, Smith, was
dead. Law enforcement officers were dispatched to Appellant and
Smith’s shared residence, where they found a trail of bloodstains
from Smith’s car in the driveway, along the front porch, to the door,
which had been kicked in. Inside, Smith was found deceased, lying
nude in her bed, covered by a blanket and a small red towel or
washcloth over her eyes. Her body exhibited numerous and
extensive injuries, and the bedroom itself was littered with broken
and overturned objects. There appeared to be bloodstains on the
counsel under the Sixth Amendment to the United States Constitution. See
Lowery, 282 Ga. at 73 (4) (b). Appellant also cites Carter v. State, 273 Ga. 428
(541 SE2d 366) (2001) and Hanifa v. State, 269 Ga. 797 (505 SE2d 731) (1998),
each of which concerns a defendant’s right to be present at trial under Article I, Section I, Paragraph XII of the Georgia Constitution. See Carter, 273 Ga. at
429-430 (3); Hanifa, 269 Ga. at 807 (6). We therefore conclude that Appellant’s
challenge to the trial court’s alleged infringement of his right to be present
concerns Appellant’s right under the Georgia Constitution and that his claim
regarding effective assistance of counsel is raised under the United States
Constitution. We remind counsel to cite those portions of the constitutions on
which they rely. See Supreme Court Rule 19 (1) (g) (requiring the appellant’s
brief to contain an argument section which “cite[s] the authorities relied on”);
Supreme Court Rule 22 (2) (“[B]riefs must contain full and complete citations
of authority.”).
3
floor, and there were large amounts of dried blood in the nearby
bathroom.
While law enforcement officers were searching Appellant’s
home, Appellant remained at the White County Sheriff’s Office.
There, he gave one written statement and two oral statements to
law enforcement officers. Appellant’s second oral statement was
video-recorded, admitted into evidence at trial, and played for the
jury. In Appellant’s second oral statement, which was consistent
with his first, Appellant explained that he and Smith had gone out
the prior evening with Smith’s friends to two bars in Helen, Georgia.
Appellant stated that he “black[ed] out” from alcohol, but that he
partially remembered getting into a verbal fight with Smith in
Helen because she had been flirting with and “touching” another
man at one of the bars. Appellant further stated that he did not
remember whether he or Smith drove them home, but that he had
some memory of getting into a physical fight with Smith during the
drive, kicking in the front door, and continuing the altercation before
and after Smith took a bath. Though Appellant’s reported memory
4
of the events was incomplete, he admitted that he was the sole
person responsible for Smith’s death.
A subsequent autopsy revealed the extent of Smith’s injuries.
According to the testimony of Dr. John Wassum, an assistant
medical examiner for the GBI, Smith had dozens of contusions
across the front and sides of her body consistent with blunt-force
trauma. There were at least ten contusions on her face, covering
both cheeks and both eyes, her forehead, chin, jaw line, and ear lobe.
Further injuries consistent with blunt-force trauma were found on
her abdomen, chest, arms, and hands, as well as on her knees, shins,
and both ankles. An internal examination revealed that Smith had
two broken ribs and a “large[,] ragged laceration” on her liver, which
caused large amounts of internal bleeding. Smith also had a
hematoma that was “diffuse across the entire scalp,” as well as
subdural and subarachnoid hemorrhages in her brain. The fifth
cervical vertebra in her neck was broken, which, in Dr. Wassum’s
opinion, was likely caused by the blunt-force trauma to her chin. Dr.
Wassum determined that Smith’s cause of death was blunt-force
5
trauma to her head, neck, and torso.
At trial, Appellant conceded through counsel that he had killed
Smith but argued that the jury should find him guilty only of
voluntary manslaughter, rather than of murder.
2. On appeal, Appellant argues that the sequencing of the
verdict form — which listed pre-printed options for malice murder,
felony murder, voluntary manslaughter, and aggravated assault, in
that order — was “confusing” because it was inconsistent with the
jury instructions in two related, but distinct ways. First, Appellant
claims that, though the trial court correctly instructed the jury that
it could return a verdict of guilty of voluntary manslaughter for
either Count 1 (malice murder) or Count 2 (felony murder), the
verdict form listed voluntary manslaughter only after Count 2. In
Appellant’s view, the form therefore “implied that voluntary
manslaughter was not a valid alternative for malice murder in
Count 1.” Second, Appellant argues that the verdict form incorrectly
implied that the jury was required to determine whether Appellant
was guilty of malice murder and felony murder before considering
6
voluntary manslaughter, contrary to the court’s jury charge, which
correctly provided that the jury must determine if there were
mitigating circumstances that would reduce either Count 1 or
Count 2 to voluntary manslaughter before it was authorized to
return a verdict on either count. While both issues arise from the
trial court’s choice to list options for malice murder, felony murder,
and voluntary manslaughter in that order, they present distinct
challenges to the verdict form, and, as explained below, only the first
of these claims was preserved for ordinary appellate review. We
accordingly treat them separately, and, after review, conclude that
both fail.
(a) During its charge to the jury, the trial court instructed the
jury on Appellant’s presumption of innocence, the State’s burden of
proof, and reasonable doubt. The court also instructed the jury on
malice murder, felony murder, and voluntary manslaughter.
In defining malice murder, the court explained that “[a] person
commits murder when that person unlawfully and with malice
aforethought, either express or implied, causes the death of another
7
human being.” The court further instructed the jury that “[l]egal
malice is not necessarily ill will or hatred, but it is an unlawful
intention to kill without justification, excuse, or mitigation.”
(Emphasis supplied.) When defining felony murder, the court stated
that “[a] person also commits the crime of murder when, in the
commission of a felony, that person causes the death of another
human being with or without malice.” Following the court’s
instructions regarding malice murder and felony murder, it stated:
After consideration of all the evidence, before you would
be authorized to return a verdict of guilty of malice
murder or felony murder, you must first determine
whether mitigating circumstances, if any, would cause
the offenses to be reduced to voluntary manslaughter.
(Emphasis supplied.)
The court then defined voluntary manslaughter as
follows:
A person commits voluntary manslaughter when that
person causes the death of another human being under
circumstances that would otherwise be murder if that
person acts solely as the result of a sudden, violent, and
irresistible passion resulting from serious provocation
sufficient to excite such passion in a reasonable person.
8
After explaining voluntary manslaughter, the trial court
stated:
The burden of proof is upon the State to prove beyond a
reasonable doubt that the offense is not so mitigating. If
you do not believe beyond a reasonable doubt the
defendant is guilty of murder in Count l or felony murder
in Count 2, but do believe beyond a reasonable doubt that
the defendant is guilty of voluntary manslaughter, then
you would be authorized to find the defendant guilty of
voluntary manslaughter as to that respective count and
the form of your verdict in that event would be: [“]We, the
jury, find the defendant guilty of voluntary
manslaughter[”] as to that count.
(Emphasis supplied.) The court did not instruct the jury on any other
circumstances in which it was authorized to return a guilty verdict
for voluntary manslaughter.
The trial court prepared a verdict form but did not discuss it
with the parties during the charge conference. The form began with
Count 1 (malice murder) and provided pre-printed options for the
jury to mark whether it found Appellant “guilty” or “not guilty.” The
form then listed the same options for Count 2 (felony murder).
Following Count 2, the form stated:
After considering the evidence in this case:
9
( ) We, the jury, finds [sic] the evidence DOES show
sufficient mitigation and that [Appellant] [is] guilty of
the offense of VOLUNTARY MANSLAUGHTER.
( ) We, the Jury, finds [sic] the evidence DOES NOT show
sufficient mitigation and that [Appellant] [is] not guilty
of the offense of VOLUNTARY MANSLAUGHTER.
(Emphasis in the original.) The form concluded by listing the options
of guilty and not guilty for Count 3, aggravated assault.
Immediately following the jury charge, Appellant objected to
the verdict form on the ground that it was inconsistent with the jury
instructions. Appellant argued then, as he does now, that the verdict
form should begin with voluntary manslaughter, rather than
murder, so as to make it consistent with the jury charge. The trial
court overruled Appellant’s objection.
During the jury’s deliberations, the jury wrote a note to the
trial court asking, “On Count 2, if we find the defendant guilty of
felony murder[,] do we mark anything on the second section
indicating guilty or not guilty of voluntary manslaughter?” This note
was delivered by the bailiff to the trial judge in chambers. Neither
10
party was alerted at that time to the jury’s note nor consulted about
the trial court’s response. The trial judge wrote on the note, “No, you
will leave that portion blank,” and the note was returned to the jury.
When the jury finished deliberating, it was asked to read its
verdict, and the jury foreperson pronounced the defendant guilty of
Counts 1 and 2. After the foreperson read Count 2, the trial judge
interrupted and asked, “And before we go any further, . . . did the
jury consider . . . whether there were any mitigating circumstances
that would justify voluntary manslaughter?” The foreperson
responded, “Yes.” The court then asked the foreperson to continue,
and the foreperson announced that the jury had found Appellant
guilty of Count 3, aggravated assault. Consistent with the trial
court’s response to the note, the jury left blank the portion of the
verdict form regarding voluntary manslaughter. The jury was
polled, and each member confirmed the verdict.
(b) A verdict form in a criminal case is erroneous when “the
form would mislead jurors of reasonable understanding, or the trial
court erroneously instructed the jury on . . . the possible verdicts
11
that could be returned, or how the verdict should be entered on the
printed form.” Ruff v. State, 314 Ga. 386, 388 (2) (877 SE2d 239)
(2022) (citation and punctuation omitted). When determining
whether there is error regarding a preprinted verdict form, the “form
is treated as part of the jury instructions which are read and
considered as a whole.” Atkins v. State, 310 Ga. 246, 252 (3) (850
SE2d 103) (2020). See also Rowland v. State, 306 Ga. 59, 67-68 (6),
(829 SE2d 81) (2019) (“In deciding whether a verdict form accurately
presented the law and properly guided the jury, we review the form’s
language in conjunction with the rest of the trial court’s jury
instructions.”).
(i) As an initial matter, the State argues that Appellant failed
to preserve for ordinary appellate review his argument that
voluntary manslaughter should have also been included on the
verdict form immediately after Count 1, as it had been after Count
2, because Appellant failed to object on that specific ground at trial.
See OCGA § 17-8-58 (providing that a party who objects to any
portion of the jury charge must “inform the court of the specific
12
objection and the grounds for such objection before the jury retires
to deliberate,” and that a failure to make such an objection “shall
preclude appellate review of such portion of the jury charge, unless
such portion of the jury charge constitutes plain error which affects
substantial rights of the parties.”). We agree, and therefore review
for plain error Appellant’s claim that the trial court should have
listed voluntary manslaughter after Count 1, in addition to Count 2.
See Jones v. State, 303 Ga. 496, 501 (III) (813 SE2d 360) (2018)
(applying plain error review under OCGA § 17-8-58 where the
appellant objected to the jury charge but did not “make the specific
objection that he now raises on appeal”); Cheddersingh v. State, 290
Ga. 680, 682-683 (2) (724 SE2d 366) (2012) (applying plain error
review under OCGA § 17-8-58 to an unpreserved claim regarding
the verdict form). To show plain error:
the appellant must demonstrate that the instructional
error was not affirmatively waived, was obvious beyond
reasonable dispute, likely affected the outcome of the
proceedings, and seriously affected the fairness, integrity,
or public reputation of judicial proceedings. Satisfying all
four prongs of this standard is difficult, as it should be.
13
State v. Owens, 312 Ga. 212, 219 (3) (862 SE2d 125) (2021). The
failure to meet a single element of this test “dooms a plain error
claim.” Rogers v. State, 311 Ga. 634, 638 (3) (859 SE2d 92) (2021).
Here, Appellant has failed to show that the trial court’s
decision to include an option on the verdict form for voluntary
manslaughter only after Count 2 instead of after both murder counts
likely affected the outcome of the proceedings. Though there may
have been better ways to formulate or sequence the verdict form, see
Chapman v. State, 258 Ga. 214, 216 (4) (367 SE2d 541) (1988) (“We
reiterate here our opinion . . . that it would be safer to omit
preprinted terms of ‘guilty’ and ‘not guilty’ from any verdict form
submitted to the jury and to require the verdict be completed by the
hand of the jury.” (citation and punctuation omitted)), the trial court
correctly instructed the jury that voluntary manslaughter was an
option for both murder counts. Specifically, as recounted above, the
trial court instructed the jury that it was required to determine
“whether mitigating circumstances . . . would cause the offenses” of
malice murder or felony murder “to be reduced to voluntary
14
manslaughter.” The court further instructed the jury that if it did
not believe Appellant was guilty of malice murder or felony murder
but did believe beyond a reasonable doubt that Appellant was guilty
of voluntary manslaughter, then it “would be authorized to find the
defendant guilty of voluntary manslaughter as to that respective
count.” (Emphasis supplied.) In light of these instructions, the
correctness of which Appellant concedes, and which we are required
to view together with the verdict form, it is likely that the jury
understood the verdict form’s preprinted options for voluntary
manslaughter were meant to apply to both counts of murder, rather
than only to Count 2 (felony murder), and it is unlikely that the
structure of the verdict form affected the outcome of the proceedings
with respect to Count 1, as Appellant contends. We therefore
conclude that the trial court did not plainly err by listing voluntary
manslaughter only after Count 2. See Leeks v. State, 296 Ga. 515,
522 (6) (769 SE2d 296) (2015) (holding that it was not error for the
trial court to refuse, over objection, to use a special verdict form
listing voluntary manslaughter after each count of murder, and to
15
instead use a general verdict form with pre-printed options of
“guilty” and “not guilty” where the court instructed the jury on
voluntary manslaughter and where there was “sufficient space
underneath each count for the jury to write in a lesser included
offense or another offense.”).
Appellant appears to argue that the jury note implied the
jurors were “confused” and they did not understand that voluntary
manslaughter was a possible alternative to malice murder. As
stated above, the jury asked, “On Count 2, if we find the defendant
guilty of felony murder[,] do we mark anything on the second section
indicating guilty or not guilty of voluntary manslaughter?”
Appellant appears to suggest that the framing of the jury’s question,
which concerns only Count 2, shows that the jury did not have
similar questions with respect to Count 1. This further implies that
the jury did not have such questions because they did not
understand that they could convict Appellant of voluntary
manslaughter for Count 1.
To the extent any such implication arises, however, it is
16
insufficient to rebut “the presumption that qualified jurors, in the
absence of clear evidence to the contrary, followed the instructions
of the trial court” to consider voluntary manslaughter with respect
to each of Appellant’s murder charges. Herring v. State, 277 Ga. 317,
320 (6) (c) (588 SE2d 711) (2003) (emphasis supplied). The fact that
the jury failed to ask a similar question with respect to Count 1 is
not clear evidence that the jurors ignored the court’s instructions or
that they were confused: it could be that the jury asked this question
after considering any mitigating evidence and determining that
Appellant was guilty of felony murder, but before reaching a
consensus on malice murder, and that the Court’s response to its
question forestalled further similar questions. Other explanations
are possible. As such, the jury note falls short of the clear evidence
needed to rebut the presumption of jurors’ adherence to the court’s
instructions. See Herring, 277 Ga. at 320 (6) (c).
(ii) In Appellant’s second claim regarding the verdict form, he
argues that the form improperly listed malice murder and felony
murder before voluntary manslaughter, thereby implying that the
17
jury should determine its verdicts on those charges prior to
considering whether there was mitigating evidence that would
reduce these charges. Though Appellant preserved this claim for
ordinary appellate review by objecting at trial, his claim fails.
In Van v. State, 294 Ga. 464 (754 SE2d 355) (2014), this Court
considered an almost identical argument regarding the use of a
verdict form that listed malice murder, felony murder, and
voluntary manslaughter in the same order as the form used here.
See Van, 294 Ga. at 467 (4). There, we held that “[m]erely listing the
offenses on the verdict form in order of malice murder, felony
murder, and voluntary manslaughter did not constitute reversible
error” where the trial court had otherwise properly instructed the
jurors on the presumption of innocence, the State’s burden of proof,
the possible verdicts that could be returned, and how to enter the
verdict on the printed form. Id.
Appellant concedes that the trial court’s formal charge to the
jury — which covered Appellant’s presumption of innocence, the
State’s burden of proof, the possible verdicts for each charge and how
18
to enter such verdicts on the printed form — was correct, but he
contends that the trial court erroneously instructed the jury
regarding the verdict form when responding to its note. We therefore
consider whether the court erred in this regard.
As recounted above, during the jury’s deliberations, it sent a
note to the court asking, “On Count 2, if we find the defendant guilty
of felony murder[,] do we mark anything on the second section
indicating guilty or not guilty of voluntary manslaughter?” and the
court responded, “No, you will leave that portion blank.” Appellant
argues that this response was erroneous: in Appellant’s view, the
court’s response was akin to “telling the jury it should not even make
a decision on voluntary manslaughter if it voted to convict on felony
murder.”
Appellant has raised two issues with the court’s response,
arguing that, consistent with this instruction, (1) the jury could
determine Appellant was guilty of felony murder without
considering whether there were mitigating circumstances that
would reduce that offense to voluntary manslaughter or (2) the jury
19
could determine that Appellant was guilty of both felony murder and
voluntary manslaughter (but leave the portion of the verdict
corresponding to voluntary manslaughter blank, in accordance with
the court’s instruction).3
We do not construe the court’s response to the note in a
vacuum, however; it was but one instruction that must be considered
together with the court’s other instructions as a whole. Appellant
argues that the court’s response permitted the jury to find the
defendant guilty of felony murder without considering evidence in
mitigation. But, as we have already noted, the court previously
3 These options would be problematic because, as we explained in Edge
v. State, 261 Ga. 865 (414 SE2d 463) (1992), a defendant cannot be convicted
of both felony murder and voluntary manslaughter for the same underlying
assault, and because, where there is at least slight evidence of voluntary
manslaughter, “a sequential charge requiring the jury to consider voluntary
manslaughter only if they have considered and found the defendant not guilty
of malice murder and felony murder is not appropriate.” See Edge, 261 Ga. at
865-867 (2). We have held, however, that where, as here, the court instructs
the jury it must first determine whether “mitigating evidence, if any, would
cause the offense to be reduced to voluntary manslaughter,” before the jury is
“authorized to return a verdict of guilty of malice murder or felony murder,”
the jury charge is not improperly sequential in violation of Edge. See Elvie v.
State, 289 Ga. 779, 780 (2) (716 SE2d 170) (2011) (explaining that the pattern
charge referenced above “has frequently been relied upon in determining that
the jury was not given improper sequential instructions in violation of Edge”).
20
instructed the jury that it “must first determine” whether there were
mitigating circumstances that would reduce felony murder to
voluntary manslaughter “before” the jury “would be authorized to
return a verdict of guilty” on the felony murder count. When the
court’s response to the jury note is considered together with this
instruction, Appellant’s first argument fails. It makes no difference
that the court did not recharge the jury that it must first determine
whether there were mitigating circumstances before it was
authorized to find the defendant guilty of felony murder: because the
jury did not request a recharge on this instruction, the court was
within its sound discretion not to give it. See Barnes v. State, 305
Ga. 18, 23 (3) (823 SE2d 302) (2019) (“A trial court has a duty to
recharge the jury on issues for which the jury requests a recharge.
As a general matter, however, where no such request has been made
[by the jury], the need, breadth, and formation of additional jury
instructions are left to the sound discretion of the trial court.”).
Appellant’s second argument also fails. Appellant claimed at
trial that if the jury followed the trial court’s direction to leave a
21
portion of the verdict form blank, we would not know if the jury
found Appellant guilty of both felony murder and voluntary
manslaughter. But the only circumstance under which the court
authorized the jury to return a verdict of guilty of voluntary
manslaughter for Count 2 was if, after considering evidence in
mitigation, the jury did “not believe beyond a reasonable doubt the
defendant is guilty of . . . felony murder.” Specifically, the court
instructed the jury that a guilty verdict of voluntary manslaughter
for Count 2 required the following: (1) proof by the State of “every
essential element” of felony murder “beyond a reasonable doubt”; (2)
the State’s failure “to prove beyond a reasonable doubt that the
offense [was] not . . . mitigat[ed]; and (3) proof beyond a reasonable
doubt that Appellant “cause[d] the death of another human being
under circumstances that would otherwise be murder” (emphasis
supplied); but for (4) the jury’s determination beyond a reasonable
doubt that Appellant acted “solely as a result of a sudden, violent,
and irresistible passion resulting from serious provocation sufficient
to excite such passion in a reasonable person.” Further, as
22
previously explained, the court instructed the jury that it must
consider evidence in mitigation before returning a verdict of guilty
for felony murder. Considering the court’s response to the note
together with its previous instructions, as we must, the trial court’s
instructions did not permit the jury to find the defendant guilty of
both felony murder and voluntary manslaughter at the same time
while leaving the voluntary manslaughter portion of the verdict
form blank. Thus, in the context of the court’s other instructions, the
court’s response was within its discretion and not incorrect. See
White v. State, 291 Ga. 7, 9 (3) (727 SE2d 109) (2012) (no error where
the trial court accepted a verdict that found the defendant guilty of
felony murder but left the portion of the verdict form corresponding
to voluntary manslaughter blank); Barnes, 305 Ga. at 23 (3).
Appellant nonetheless argues that the jury’s note shows it had
already determined Appellant was guilty of felony murder without
considering voluntary manslaughter, in violation of the jury charge.
We disagree. Because the jury note asked how to complete the
verdict form “if” the jury found the defendant guilty of murder, we
23
cannot conclude from it that the jury had already made such a
determination or that it made such a determination without first
considering evidence in mitigation. This is especially true where the
jury foreperson later confirmed during his recitation of the verdict
that the jury had considered evidence in mitigation as instructed.
See Herring, 277 Ga. at 320 (6) (c) (“While a verdict form that
demonstrates the jury considered and rejected voluntary
manslaughter is helpful, its absence does not overcome the
presumption that qualified jurors, in the absence of clear evidence
to the contrary, followed the instructions of the trial court to
consider voluntary manslaughter before considering the felony
murder charge.” (citations and punctuation omitted)).
Because the trial court’s response to the note was not incorrect
and because the foreperson confirmed, during the return of the
verdict and in response to the judge’s question, that the jury did in
fact follow the court’s instructions, Van controls Appellant’s claim
regarding the allegedly erroneous ordering of the charges on the
verdict form. Appellant’s claim therefore fails. See Van, 294 Ga. at
24
467 (4) (holding that where the jury was properly instructed on the
presumption of innocence, the State’s burden of proof, and the
possible verdicts that could be returned, “[m]erely listing the
offenses on the verdict form in order of malice murder, felony
murder, and voluntary manslaughter did not constitute reversible
error”).
3. In his final enumeration of error, Appellant argues that the
trial court violated both his right under Article I, Section I,
Paragraph XII of the Georgia Constitution to be present during the
criminal proceedings against him and his right under the Sixth
Amendment of the United States Constitution to the effective
assistance of counsel by receiving and responding to the jury note
outside the presence of the parties and without consulting counsel
regarding the court’s response. Because we agree that the trial court
mishandled its response to the jury note, we assume without
deciding that the trial court violated Appellant’s right to counsel
under the United States Constitution and his right to be present
under the Georgia Constitution. We nevertheless conclude, however,
25
that the court’s assumed violation of Appellant’s right to counsel was
harmless beyond a reasonable doubt and that the rebuttable
presumption of harm arising from the court’s assumed violation of
Appellant’s right to be present was overcome by the evidence, as
explained further below.
(a) The parties did not become aware of the note described
above until after the trial court dismissed the jury. After the jury
departed, the trial court informed counsel for both parties that it
had received the note described above, explained its response, and
gave the parties a chance to inspect the note, which was marked as
Court’s Exhibit 1 and entered into the record.
Appellant objected to the trial court’s communication with the
jury outside of the presence of the parties. Appellant also objected to
the trial court’s procedure insofar as it failed to notify the parties of
the note until after the jury was dismissed, thereby depriving
Appellant of the chance to move timely for mistrial. Appellant
nevertheless attempted to move for mistrial, which the trial court
denied before Appellant could state the grounds for his motion. The
26
trial judge then adjourned the trial and instructed the court reporter
to stop transcribing the proceedings, even though Appellant’s
counsel was still attempting to articulate the grounds for his
motion. 4
(b) In Lowery v. State, 282 Ga. 68 (646 SE2d 67) (2007), we
exercised our “inherent power” to announce a set of rules governing
jurors’ communications with the trial court (the “Lowery Rules”).
Lowery, 282 Ga. at 76 (4) (b) (ii). Under the Lowery Rules, trial
courts are required:
to have jurors’ communications submitted to the court
in writing; to mark the written communication as a
court exhibit in the presence of counsel; to afford
counsel a full opportunity to suggest an appropriate
response; and to make counsel aware of the substance
of the trial court’s intended response in order that
counsel may seek whatever modifications counsel
deems appropriate before the jury is exposed to the
instruction.
4 We do not condone the conduct of the trial court. The trial court violated
the procedures set forth in Lowery v. State, 282 Ga. 68 (646 SE2d 67) (2007),
and the court’s attempt to end the proceedings and close the record while
counsel was still attempting to articulate the grounds for his motion for
mistrial was inappropriate.
27
Id. 5 The State does not dispute that the trial court failed to follow
these procedures.
Though we have applied harmless error analysis to claims
arising from a trial court’s failure to follow the Lowery Rules, see
e.g., Styles v. State, 309 Ga. 463, 469 (3) (847 SE2d 325) (2020);
Grant v. State, 295 Ga. 126, 129 (4) (757 SE2d 831) (2014), we have
applied heightened standards of review where an appellant asserts
that the trial court violated a constitutional right in the course of a
Lowery violation. Where, as here, an appellant argues that a trial
court violated his right to the assistance of counsel under the Sixth
Amendment by failing to follow the Lowery Rules, we have applied
federal precedent requiring the State to show that any such error is
harmless beyond a reasonable doubt. See Lowery, 282 Ga. at 75-76
(4) (b) (ii) (citing Chapman v. California, 386 U.S. 18, 24 (III) (87
SCt 824, 17 LE2d 705) (1967)). See also Muse v. State, 316 Ga. 639,
5 As we noted in Styles v. State, 309 Ga. 463 (847 SE2d 325) (2020),
“[s]ome of us have questions as to the propriety of our unilateral
pronouncement of a new rule of procedure in Lowery, rather than through the
rule-making process established by the Georgia Constitution.” Styles, 309 Ga.
at 469 (3) n.6.
28
657-658 (5) (c) (889 SE2d 885) (2023) (citing Lowery and applying a
constitutional harm standard).
Where, however, an appellant raises a right-to-be-present
claim under the Georgia Constitution regarding substantive
communications between the court and the jury during its
deliberations outside the parties’ presence, we have instead applied
a rebuttable-presumption-of-harm standard. See Hanifa v. State,
269 Ga. 797, 807 (6) (505 SE2d 731) (1998) (stating that “unless the
character of the communication” between the court and the jury
“clearly shows that it could not have been prejudicial to the accused,
the presumption of law would be that it was prejudicial” (citation
and punctuation omitted)), disapproved of on other grounds by Clark
v. State, 315 Ga. 423 (883 SE2d 317) (2023). See also Fuller v. State,
277 Ga. 505, 506 (2) (591 SE2d 782) (2004) (quoting Hanifa, 269 Ga.
at 807 (6)); Waldrip v. State, 266 Ga. 874, 878-879 (2) (471 SE2d 857)
(1996) (holding that the presumption of error that arose from the
trial judge eating lunch with the sequestered jury was overcome and
29
that the error was harmless).6
(c) It is undisputed that the trial court failed to follow the
Lowery Rules. Nevertheless, Appellant’s claims fail. Assuming
without deciding that the trial court’s receipt of and response to the
jury note outside the presence of Appellant and his counsel violated
Appellant’s right to be present under the Georgia Constitution and
his right to effective assistance of counsel under the United States
Constitution, these errors were harmless under the applicable
standards of review explained above.
6 As we explained at length in Champ v. State, 310 Ga. 832 (854 SE2d
706) (2021), we have been inconsistent regarding whether the presumption of
harm arising from a violation of the defendant’s right to be present is
rebuttable. See Champ, 310 Ga. at 845 (2) (c) n.10. There, we noted that while
Georgia courts “began saying more consistently and squarely that violations of
the Georgia Constitution’s right to be present are not subject to harmless error
analysis” by the late 1990s, “this Court and the Court of Appeals have
continued to treat one type of right-to-be-present violation — communications
between trial courts and jurors without the defendant present — as subject to
a rebuttable presumption of prejudice.” Id. We further stated that “[i]t is not
clear . . . whether the automatic-reversal position . . . is the correct rule for all cases, for certain categories of cases, or for no cases. We would be amenable to
reconsidering our recent holdings in a case in which the issue is fully briefed.”
Id. Here, Appellant cites Hanifa and Carter for the proposition that a
rebuttable presumption of harm applies. Because Appellant does not ask us to
reconsider these cases or to otherwise resolve our caselaw regarding whether
the presumption of harm is rebuttable, we decline to do so here. But, as we said
in Champ, id., we remain amenable to such arguments if properly raised in a
future case.
30
(i) We turn first to Appellant’s right-to-counsel claim. The
assumed violation of Appellant’s right to counsel arose from the trial
court’s response to the jury note outside the presence of counsel.
That note concerned the mechanical process of completing the
verdict form, rather than the law regarding the charges presented.
And the trial court’s response — which directed the jury to leave
blank the portion of the verdict form corresponding to voluntary
manslaughter if it found the defendant guilty of felony murder —
concerned that same mechanical process.
By responding to the jury without consulting counsel, the trial
court deprived Appellant of the opportunity to inspect the note, to
offer a proposed response, or to object to the trial court’s response.
See Phillips v. Harmon, 297 Ga. 386, 392-393 (I) (B) (774 SE2d 596)
(2015) (explaining the consequences of a court’s failure to disclose a
jury note to the parties and their counsel). We have already
concluded, however, that in the context of the instructions as a
whole, the court’s substantive response to the jury’s note was not
incorrect and was within the trial court’s discretion. See Division 2
31
(b) (ii), supra. It is therefore unclear what guidance, if any,
Appellant or Appellant’s trial counsel could have provided the court
with respect to its response that would have altered the outcome of
the proceedings, and Appellant does not propose any such guidance
on appeal. We also consider that though the trial court did not
disclose the note until after it dismissed the jury, it did ultimately
inform counsel. This disclosure permitted Appellant’s counsel to
request that the note be made a part of the record and to object to
the court’s procedure. Though the court did not permit Appellant’s
counsel to articulate the grounds of his motion for mistrial, the
court’s disclosure ensured that Appellant could litigate the
correctness of the trial court’s response at the motion for new trial
and on appeal, as he did. Each of these considerations leads us to
the conclusion that this assumed error was harmless. Compare
Phillips, 297 Ga. at 393 (I) (B) (concluding there was harmful error
where the jury’s note was not preserved and differing recollections
of the timing of the note meant that the plaintiffs were unable to
litigate whether the trial court properly responded to the note).
32
Further, and more importantly, we have held that when the
jury has been charged on voluntary manslaughter and it “returns a
verdict of malice murder, it, of necessity, finds that the defendant
committed the homicide without the provocation sufficient to
authorize a verdict of guilty of voluntary manslaughter.” Terry v.
State, 263 Ga. 294, 294 (1) (430 SE2d 731) (1993) (citation and
punctuation omitted). See also Stanley v. State, 300 Ga. 587, 591 (2)
(797 SE2d 98) (2017) (same); Johnson v. State, 300 Ga. 665, 668 (4)
(a) (797 SE2d 903) (2017) (same); Dyal v. State 297 Ga. 184, 187-188
(4) (773 SE2d 249) (2015) (same). This is so because, as the court
instructed the jury, “[l]egal malice . . . is an unlawful intention to
kill without justification, excuse, or mitigation.” (Emphasis
supplied.) See, e.g., Tessmer v. State, 273 Ga. 220, 222 (2) (539 SE2d
816) (2000) (“Malice means the intent to take a life without legal
justification or mitigation.”); Bailey v. State, 70 Ga. 617, 621 (2)
(1883) (“[M]alice . . . . is an unlawful intention to kill, without
justification, or mitigation.”). Thus it was the jury’s finding that
Appellant killed his girlfriend with malice, rather than the
33
potentially faulty verdict form, that eliminated a determination that
Appellant was guilty only of voluntary manslaughter. See Dyal, 297
Ga. at 188 (4). Cf. Swayzer, 263 Ga. 690, 691 (1) (436 SE2d 652)
(1993) (holding that because the jury found the defendant guilty of
malice murder, any error in giving an improperly sequential jury
charge in connection with felony murder and voluntary
manslaughter was harmless). We therefore conclude that the error
arising from the trial court’s assumed violation of Appellant’s right
to counsel under the Sixth Amendment to the United States is
harmless beyond a reasonable doubt.
(ii) Many of these same considerations affect our analysis of the
harm that arose from the trial court’s assumed violation of
Appellant’s right to be present. As stated above, we apply a
rebuttable presumption of harm where the court engages in a
substantive communication with the jury outside the presence of the
defendant. See Hanifa, 269 Ga. at 807 (6). Even where the
communication is substantive, however, the presumption of harm
that arises may be overcome by evidence that the communication
34
did not affect the outcome of the trial. See Waldrip, 266 Ga. at 877-879 (2). In Waldrip, the trial court attended lunch with the jurors at
the hotel at which they were sequestered, outside the presence of
the defendant and his counsel. Id. at 877 (2). The judge later
informed the parties and explained that he and the jurors had
engaged in “informal chitchat” unrelated to the case. Id. Defense
counsel immediately moved for a mistrial, but his motion was
denied. Id. After the jury returned a guilty verdict, the trial court
questioned each of the jurors on the record about his or her
recollection of this lunch. Id. Though many of the jurors could not
recall their conversations with the judge or confirmed that they had
engaged in only small talk, one of the jurors testified that he told the
judge that if his wife and granddaughter were to come to the area,
he “might have to break the law” related to his sequestration. Id.
According to this juror, the trial judge responded that he “might do
the same thing” if he were in the juror’s position. Id. at 878 (2). The
juror testified, however, that nothing the judge said or did affected
his decisions regarding the verdict. Id. at 878, 879 (2). Each other
35
juror testified to the same. Id. at 877 (2). Notwithstanding its
recognition that a presumption of harm arose from the judge’s ex
parte communications with the jury, see id. at 878 (2), the Waldrip
Court concluded that the error was harmless because each member
of the jury confirmed that there was no effect upon the verdict. Id.
at 879 (2).
Turning to Appellant’s case, the court’s communications with
the jurors were substantive insofar as they concerned the process of
completing the verdict form, but we have already concluded that the
court’s failure to consult with counsel was harmless beyond a
reasonable doubt because this failure did not affect the outcome of
the trial. See Division 3 (c) (i), supra. As explained above, the court’s
response to the note was not incorrect; the court acted within its
discretion to forgo further instruction; and the jury considered
evidence in mitigation but nevertheless found Appellant guilty of
malice murder. Two conclusions follow. First, like his trial counsel’s
absence, Appellant’s absence during the Court’s written
communications with the jury did not affect the outcome of the trial.
36
Second, because these communications did not affect the outcome of
the trial, the presumption of harm from the assumed violation of
Appellant’s right to be present was overcome. See Waldrip, 266 Ga.
at 879 (2) (concluding that the presumption of harm arising from the
defendant’s involuntary absence during a discussion between the
trial judge and a juror regarding sequestration had been overcome
because the discussion did not affect the outcome of the trial). As
such, we conclude that the presumption of harm arising from the
court’s assumed violation of Appellant’s right to be present is
rebutted by the evidence.
This result is not inconsistent with our decision in Phillips v.
Harmon because that case is distinguishable. See Phillips, 297 Ga.
at 392-393 (I) (B). There, the trial court responded to multiple notes
outside the presence of the parties and their counsel, and we
concluded that the trial court’s violation of the civil defendants’ right
to be present was harmful. See Phillips, 297 Ga. 393 at (I) (B).
Among our reasons for concluding there was harm, we noted that
the jury notes were not disclosed to the plaintiffs until several weeks
37
after the trial, that the court had failed to preserve one of those notes
for the record, and that the judge and some of the jurors had
different recollections about the nature and timing of their
communications. See id. Unlike Phillips, these circumstances are
not present here: the note was disclosed immediately after the jurors
were dismissed, the court preserved the note as part of the record,
and there is no dispute about the timing of the judge’s
correspondence with the jury. Perhaps most importantly, we further
stated in Phillips that “the inability to make a determination that a
verdict for the Defendants was demanded, regardless of any effect of
the communication on the jury, support[s] Plaintiffs’ entitlement to
a new trial.” Id. Here, we have made an opposite conclusion: a
verdict for the State on voluntary manslaughter was demanded by
the jury’s determination, regardless of the court’s response to the
note, given the foreperson’s confirmation that the jury considered
evidence in mitigation and the jury’s finding that Appellant
committed malice murder. As such, it is appropriate to reach a
different result here.
38
Judgment affirmed. All the Justices concur.
39