Wallace v. State
Wallace v. State
Opinion of the Court
Jamad Jacque Wallace appeals his convictions for murder and other crimes arising from the fatal shooting of Alex Delgado-Ramos ("Delgado") in a drug store parking lot.
The State's primary witness was Delgado's girlfriend, Brittney Zevenbergen. According to her testimony, she and Delgado spent March 4, 2012, doing laundry, walking in a park, and shopping at Walmart. That evening, Delgado asked Zevenbergen to go with him to a CVS. Zevenbergen suspected that Delgado's plan was to purchase marijuana, as he smoked marijuana daily. Zevenbergen parked in the CVS parking lot, and Wallace got into the back seat. At some point, Zevenbergen heard Delgado say something like, "I thought you were cool[.]" Wallace pointed a handgun at Delgado's head and ordered him *96to empty his pockets; Zevenbergen tried to show Wallace the pockets were empty and insisted Delgado did not have a weapon. Wallace backed out of the car, still pointing his gun, and Delgado followed, despite Zevenbergen's attempts to pull him back. Zevenbergen heard more arguing and then two gunshots.
Wallace fled the scene. Zevenbergen found Delgado lying on the ground and bleeding from the head. Delgado later died of the gunshot wound. In addition to the bullet that hit Delgado, a bullet landed in the side-step of a vehicle that had been parked next to Zevenbergen's.
Wallace testified at trial, giving a version of events different from that relayed by Zevenbergen. According to Wallace, he and Delgado met earlier in the day on March 4 at a Kroger-at odds with the testimony of Zevenbergen, who said she and Delgado never went to a Kroger that day. Wallace claimed that he purchased a quarter of a pound of marijuana from Delgado, later realizing that the marijuana Delgado had sold him was not the quantity or quality it was supposed to be. Wallace said he and Delgado arranged to meet at the CVS; Wallace said he did not bring a gun or the marijuana but wanted to get his money back. Wallace claimed that he exited Zevenbergen's vehicle only after he heard what he thought was a gun being cocked. He claimed that Delgado came after him with his gun, the two men grabbed one another, and the gun discharged at a downward angle as Wallace pushed Delgado's hand away. Wallace said the gun went off again as the two continued to tussle, Wallace trying to turn the gun away from his own face.
The medical examiner testified that the weapon was fired from a distance of at least 30 inches. She testified that there was no stippling on Delgado, which she would have expected to find if Delgado were holding the gun himself when he was shot.
1. Although Wallace does not challenge the sufficiency of the evidence, it is our customary practice in murder cases to independently review the record to determine whether the evidence was legally sufficient. Having done so, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Wallace was guilty of the crimes for which he was convicted. See Jackson v. Virginia,
2. Wallace argues that the trial court erred by failing to conduct an adequate inquiry before it replaced a holdout juror with an alternate juror. To the extent Wallace did not affirmatively waive this claim, he has not shown that the trial court abused its discretion.
The jury had deliberated for about nine hours (minus two lunch breaks) over two days when the jury foreperson sent a note to the trial court indicating that the jury had reached a verdict on three counts-felony murder, possession of a firearm by a first offender probationer, and possession of a firearm during the commission of a felony-but was at an impasse on the other four. With the agreement of the parties, the trial court gave a charge pursuant to Allen v. United States,
*97The following morning, before the alternate juror was brought into the courtroom with the rest of the jury, defense counsel told the trial court that she had received a voicemail from the released juror. Defense counsel stated that she had returned the dismissed juror's call but told the juror that she was not comfortable speaking to her and directed her to contact the trial court if she had any concerns.
At the motion for new trial hearing, the dismissed juror said that she had participated in the deliberations that resulted in an agreement on some of the counts but things became "rough" when she would not agree on the other counts. She said she ultimately stopped talking during deliberations due to the hostility of other jurors, adding that if she said anything, "someone would probably like yell at me and throw papers." But the juror also affirmed that her mind would not have been changed. The trial court denied the motion for new trial, saying Wallace would have been convicted of "essentially" the same charges even if the dissenting juror had not been removed, as the court would have taken a partial verdict, including the guilty verdict on felony murder.
Wallace complains on appeal that the trial court's decision to replace the holdout juror with an alternate was not preceded by sufficient inquiry. But Wallace urged the trial court to dismiss the holdout juror without questioning her first. Affirmative waiver, as opposed to mere forfeiture by failing to object, prevents reversal. See Adkins v. State,
The only argument on this point that Wallace did preserve is essentially an argument that the trial court erred the next day in refusing to reconsider its decision. It is not clear that he has properly asserted such an argument on appeal, however, as the enumeration of error set forth by Wallace does not mention the trial court's refusal to reconsider its decision but asserts only that the trial court "erred by failing to conduct an adequate inquiry prior to his decision to replace a 'lone hold-out' deliberating juror with an alternate juror." Although by his brief Wallace suggests that the trial court should have reconsidered, "an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of errors." Felix v. State,
*98But even assuming that Wallace's argument that the trial court should have reconsidered is properly before us, we do not find a basis for reversal. OCGA § 15-12-172 authorizes a trial court to substitute the first alternate for an original juror if at any time "a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause[.]" We review a trial court's decision to substitute an alternate for an original juror for an abuse of discretion. See Williams v. State,
We acknowledge that alternate jurors generally should not serve to substitute for minority jurors who cannot agree with the majority, as taking such a minority position does not by itself render a juror incapacitated or legally unfit to serve, and making such a substitution may constitute an abuse of discretion. See Semega v. State,
Moreover, the trial court had been apprised that the dismissed juror had a telephone conversation with defense counsel, which itself could be a basis for the juror's dismissal. See, e.g., White v. State,
3. Wallace also argues that the trial court erred by informing the jury that two witnesses were held in contempt for refusing to testify on behalf of the State. The trial court did not commit reversible error in this regard.
According to the State's proffer, the two witnesses, Andre Ross and Stacey Samuel, informed police that Wallace had admitted to shooting the victim while attempting to rob him. Ross and Samuel refused to testify at *99trial and were held in contempt.
Wallace argues on appeal that these remarks by the trial court introduced information that was not relevant to the jury's consideration of the case.
It is true that in a similar case we have questioned the relevance of a State witness's refusal to testify. See Hendricks v. State,
Wallace argues that the trial court's remarks were prejudicial in that they "compounded the unavoidable inference" from Millsap's testimony that Samuel and Ross refused to testify because their testimony would harm the defense. But that inference does not actually follow from Millsap's testimony. Rather, the reference to the witnesses in Millsap's testimony is disconnected from the question about when law enforcement learned of Wallace as a suspect:
Q Did that [investigation] include interviewing two individuals ... one named *100Stacey Samuel and one named Andre Ross?
A Yes, sir.
Q All right. And your investigation continued; is that correct?
A That's correct.
Q All right. At some point during the investigation, did you obtain information of a possible suspect?
A Yes, sir.
Q And what was the name of that possible suspect?
A Jamad Wallace.
Here, the jury was given no clue as to the expected nature of the testimony of Ross or Samuel. But even if, as the defense argues, the trial court's remarks did give rise to some suggestion that Ross and Samuel would point to Wallace as the perpetrator in the shooting of Delgado, such a suggestion is not at odds with Wallace's defense at trial. Wallace did not point to another perpetrator but claimed essentially that Delgado accidentally shot himself while tussling with Wallace. He makes no argument as to how the jury would have gleaned something from the trial court's remarks that was contrary to that defense. He has not met his burden to show that the trial court's remarks prejudiced his case. See, e.g., Proctor v. State,
4. Finally, Wallace argues that his trial counsel rendered ineffective assistance of counsel in failing to prepare adequately for cross-examination of Zevenbergen. This claim also fails.
In order to establish that trial counsel was ineffective, Wallace must show both that trial counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington,
Wallace alleges two shortcomings in trial counsel's preparation for cross-examination. First, he suggests that trial counsel may not have reviewed Zevenbergen's previous statements to law enforcement in preparing for trial, pointing to trial counsel's testimony from the motion for new trial hearing in which, he says, trial counsel testified that she could not remember if she had done that. But trial counsel in fact testified that she did use Zevenbergen's two prior statements to prepare for her cross-examination.
Wallace also argues that trial counsel made inadequate efforts to obtain telephone records that might have impeached Zevenbergen's *101testimony.
Judgment affirmed.
All the Justices concur.
Delgado was shot on March 4, 2012. On January 21, 2015, a Gwinnett County grand jury indicted Wallace for malice murder, two counts of felony murder, two counts of aggravated assault, one count of possession of a firearm by a first offender probationer, and one count of possession of a firearm during the commission of a felony. The jury found Wallace guilty on all charges at an April 2015 trial. The trial court imposed a sentence of life in prison on the malice murder count and a consecutive sentence of five years on the possession of a firearm during the commission of a felony count, and purported to merge all of the other counts into the malice murder count. Trial counsel on April 22, 2015, filed a motion for new trial, which was amended by appellate counsel. The trial court denied the motion in an order filed on March 3, 2017. Wallace filed a timely notice of appeal, and this case was docketed to the August 2017 term and submitted for a decision on the briefs.
The record shows that, as of the time that proceedings commenced that morning, the dismissed juror had not contacted the trial court's staff.
We do not endorse the trial court's apparent conclusion that the replacement of the holdout juror was of no matter because Wallace would have been convicted of "essentially" the same charges if the trial court had taken a partial verdict from the deadlocked jury.
Ross's lawyer indicated that he had advised his client to assert his Fifth Amendment right, but the trial court granted Ross immunity. Samuel's lawyer said her client did "not have the same Fifth Amendment issues."
This court has held that comments like those here are not an expression of opinion as to what has been proven, which would be impermissible under OCGA § 17-8-57. See Hendricks v. State,
More specifically, we reiterated in Hendricks that a "witness'[s] in-court invocation of his Fifth Amendment rights is not necessarily harmful."
Although trial counsel testified that she did not remember whether she was able to point out any inconsistencies in Zevenbergen's statements, she did cross-examine Zevenbergen about the fact that she had testified in a previous hearing that the gun used by Wallace was silver, while testifying at trial that the gun was black.
Trial counsel testified that her investigator told her the records would be unavailable due to the passage of time.
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