Gadson v. State
Gadson v. State
Opinion of the Court
Appellant Joseph Gadson and his brother Nkosi Gadson were tried together and found guilty of the murder of Amady Seydi and other crimes committed against Seydi and his girlfriend Tarah Medsker over the span of three weeks in the fall of 2005. Appellant contends that the trial court committed plain error with regard to one burglary charge by failing to instruct the jury on the State's burden of proof when the evidence of a crime is wholly circumstantial. He also contends that he cannot obtain full and fair appellate review of his convictions because five documents are missing from the record of the trial. As explained below, Appellant has not established plain error in the omission of the proof-by-circumstantial-evidence instruction, nor has he shown that he has been harmed by the incomplete record. We therefore affirm his convictions.
*8311. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. According to Medsker, in 2005 she lived with Seydi in the same apartment complex as Appellant and his brother Nkosi. Seydi sold small amounts of marijuana out of his apartment, and Medsker knew Nkosi because he often purchased marijuana from Seydi. In late September, a few weeks before the murder, Seydi and Nkosi got into a heated dispute over a marijuana deal, and Seydi told Nkosi not to come back to his apartment again. Two days later, Seydi and Medsker's apartment was burglarized, and several cameras, some marijuana, and other items were stolen. That night, Appellant came to the apartment, and he appeared "a little nervous" when he and Seydi discussed the burglary.
Two or three days before the murder, Appellant and Nkosi came to the apartment, and Nkosi pointed a gun at Seydi and Medsker. The brothers then demanded that Seydi give them half of his profits from his marijuana sales each day, took Seydi's gun and Medsker's cell phone, and left. Because of that incident, Seydi and Medsker decided to move, and they rented a truck and began packing.
On the evening of October 11, 2005, Seydi and Medsker were at the apartment removing the last of their belongings. Medsker answered a knock on the door and let in a man she believed was a friendly acquaintance. He was followed in by Nkosi and Appellant, who wore a dark nylon mask; Medsker was able to identify Appellant because she could see his face through the stocking mask and recognized his voice, stature, and demeanor. Appellant held a gun to Medsker's head while Nkosi sought out Seydi. Seydi was shot multiple times and died almost immediately. During an interview with the police that night, Medsker identified Nkosi in a photo lineup as one of the assailants, and a few days later she identified Appellant in another photo lineup as the masked assailant.
The State's evidence also showed that on the day after the murder, the police arrested the brothers and searched their apartment. The police found a black stocking mask, a camera stolen in the first burglary, and the gun and cell phone taken from Seydi and Medsker a couple of days before the murder. They also found some marijuana and a pipe that tested positive for cocaine.
Appellant does not contend that the evidence was insufficient to support his convictions as a matter of constitutional due process. See Jackson v. Virginia,
2. Appellant contends that the trial court committed plain error by failing to give the jury an instruction based on former OCGA § 24-4-6 regarding the State's burden of proof when the evidence of a crime is wholly circumstantial. That statute-a part of the old Evidence Code in effect at the time of Appellant's trial in 2008 that was carried forward in the new Evidence Code as OCGA § 24-14-6 -says: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Appellant concedes that he failed to object to the omission of this instruction and that our review of his claim that it should have been given is therefore limited to plain error. See OCGA § 17-8-58 (b) ; State v. Kelly,
Appellant argues that the evidence was wholly circumstantial as to the first burglary of Seydi and Medsker's apartment, which was charged in Count 8 of the indictment. We agree.
Because the evidence of Appellant's participation in the first burglary was wholly circumstantial, this Court's "clear" and longstanding precedent required the trial court to instruct the jury on proof by circumstantial evidence as set forth in former OCGA § 24-4-6 even though Appellant did not request such an instruction. See Stubbs,
*833(1) Even in the absence of a request, a trial court must charge on the law of circumstantial evidence when the State's case rests solely upon such evidence; (2) The charge should consist of the language set forth in [former] OCGA § 24-4-6."). See also Walker v. State,
"In evaluating claims of instructional error, we examine the jury charge as a whole." Woodard v. State,
The other reasonable hypothesis supported by the evidence was that Appellant's brother committed the first burglary alone, even if Appellant learned of it after the fact. The instructions the trial court gave, particularly the instructions on mere presence and mere association, adequately advised the jury that if it believed that the circumstantial evidence supported this alternative hypothesis, it should return a verdict of not guilty. The jury disregarded that hypothesis and returned a verdict of guilty, as the evidence authorized it to do. See Bailey v. State,
Under these circumstances, we cannot say that if the trial court had added a jury instruction based on former OCGA § 24-4-6, it is likely that the jury would have returned a different verdict on Count 8. Appellant has therefore failed to establish plain error. See Manning v. State, Case No. S18A0369, --- Ga. ----, ----,
3. Appellant also contends that he cannot obtain full and fair appellate review of his convictions because certain documents are *834missing from the record of his trial.
At the motion for new trial hearing on January 30, 2017, the prosecutor told the court that the State was unable to locate the missing documents; the parties and the court then agreed that the record could not be reconstructed because counsel for the State and for Appellant were not the trial attorneys and in 2011 the judge had replaced the judge who presided over the trial.
2017, the court entered an order denying Appellant's motion for new trial, ruling that the parties were unable to agree as to the correctness of the transcript with regard to the five documents and that the court could not recall what transpired.
We agree with that conclusion. Because Appellant has not shown that he has been prevented from raising any viable issue on appeal or otherwise harmed as a result of the minimally incomplete record, we affirm his remaining convictions.
(a) A defendant who is tried and convicted has a right to appeal and a right to a transcript of the trial to use in bringing that appeal. See Wilson v. State,
Where all or an important portion of the original verbatim transcript of a trial is lost and the transcript reconstructed pursuant to OCGA §§ 5-6-41 (f) and (g) is manifestly inadequate, an appellant is not required to specify how he has been harmed by a particular error that may have occurred at trial but is now buried in unrecorded history. See Johnson,
(b) Although Appellant makes a general assertion that he has been harmed by the incomplete record, he alleges no specific harm from the omission of his and Nkosi's arrest warrants and the affidavit that was submitted to obtain the search warrant of their apartment. See Ruffin,
(c) Appellant does allege particularized harm from the missing search warrant for the apartment, claiming that the omission prevents this Court from adequately reviewing his objection to the warrant's admission into evidence during the trial. The trial transcript *836shows that Appellant objected to the warrant's admissibility on the ground that it had additional documents attached to it, including other search warrants. The transcript also clearly indicates, however, that Appellant got what he asked for. The State agreed to limit the exhibit to the one-page search warrant, and after the close of the evidence, the parties confirmed on the record that the additional pages attached to the search warrant had been removed.
Moreover, during its deliberations, the jury sent a note to the trial court asking if there was "a list of evidence." The court understood the question to be seeking a list of all of the evidence admitted during the trial and ultimately told the jury that there was no such list. When the court was discussing with the parties its proposed response to the note, the prosecutor said that she believed the jury was "referring to the evidence log from the search warrant, which we did admit into evidence ... but I think in an abundance of caution, we just all agree [sic] that we would not send that back." To the extent the prosecutor was saying that the evidence log (rather than the search warrant) was admitted into evidence, the transcript shows that she was mistaken. In any event, her comment indicated that the additional pages attached to the search warrant-and possibly the search warrant itself-were not given to the jury during its deliberations. Thus, the existing record is sufficient for this Court to determine that Appellant suffered no harm with respect to the missing search warrant. See
(d) Finally, Appellant claims harm from the record's omission of a document entitled "Charge Disposition Report," which the trial transcript indicates was created by the District Attorney's office and listed additional potential charges against Appellant that were contemplated by the prosecutors but not included in the indictment. The transcript also indicates that the Report was accidentally attached to the indictment that was given to the jury during its deliberations. The jury later sent the trial court a note saying that the charges in the indictment differed from those listed in the Charge Disposition Report. After the court read the jury's note to the parties, Appellant moved for a mistrial on the ground that the jury had been confused by the Report. The court denied the mistrial motion, but then brought the jurors back into the courtroom, instructed them that the Charge Disposition Report was irrelevant and that they needed to concern themselves only with the charges in the indictment, and removed the Report from the jury room. Despite these curative measures, Appellant reiterated his motion for mistrial. He now contends that without seeing the Charge Disposition Report that the jury saw, this Court cannot properly review whether the trial court abused its discretion in refusing to declare a mistrial. See Gardner v. State,
The jury's note to the trial court is included in the record; it lists the potential charges against Appellant that were included in the Charge Disposition Report inadvertently given to the jury which led to the jury's question. The note-and the parties' discussion with the court about its response to the note-provide us with sufficient information about the missing report. The trial transcript also includes Appellant's mistrial motions, the trial court's decision not to grant a mistrial, the court's curative instruction to the jury, and the court's direction that the Report be removed from the jury room. We need no more to decide that the trial court did not abuse its discretion with regard to this issue. See, e.g., Moore v. State,
*837(e) In sum, Appellant has failed to show that he has been harmed by the handful of minor omissions in the trial transcript. The loss of the five documents was unfortunate, as was the resulting delay in resolving Appellant's motion for new trial, but Appellant is not entitled to a new trial on this ground. Accordingly, we affirm his convictions.
Judgment affirmed.
All the Justices concur.
The crimes charged spanned the period from September 21 to October 11, 2005. On November 13, 2007, a Fulton County grand jury indicted Appellant and Nkosi for malice murder, two counts of felony murder (based on burglary and the aggravated assault of Seydi, both on October 11), two counts of aggravated assault of Seydi (on October 8 and 11), two counts of aggravated assault of Medsker (on October 8 and 11), two counts of burglary (one to commit theft between September 21 and October 10 and the other to commit aggravated assault on October 11), possession of cocaine (between September 22 and October 11), and possession of a firearm during the commission of a felony (on October 11). At a joint trial from August 25 to September 3, 2008, the jury found both defendants guilty of all charges. On September 4, 2008, the trial court sentenced Appellant to serve life in prison for malice murder, two 20-year consecutive terms for the aggravated assaults of Seydi on October 8 and Medsker on October 11, five consecutive years for the firearm offense, two 20-year concurrent terms for the aggravated assault of Medsker on October 8 and the burglary occurring between September 21 and October 10, and a 15-year concurrent term for the cocaine possession. The court purported to merge the remaining verdicts into the malice murder conviction, but this Court need not address any issue regarding the sentences. See Dixon v. State,
Appellant filed a timely motion for new trial. From the time the motion was filed in September 2008 until it was amended in October 2016, Appellant was represented by four different attorneys and several other motions for new trial were filed, including a motion purportedly filed by Appellant pro se; the case was also assigned to a new judge. After a hearing on January 30, 2017, the trial court denied Appellant's motion for new trial on February 27, 2017. Appellant filed a timely notice of appeal, which he amended on April 14, 2017, and the case was docketed in this Court to the term beginning in December 2017 and submitted for decision on the briefs. This Court affirmed Nkosi's convictions seven years ago in Gadson v. State,
The man who entered the apartment before Nkosi and Appellant was not called as a witness at trial. Another man, who was helping the victims move, was in the apartment during the shooting. He testified that he saw three men enter the apartment and one of them, who was wearing a black mask or bandana, held a gun to Medsker's head. The witness then hid in a bedroom, and he did not see the shooting and could not identify the assailants.
The marijuana seized from Appellant and Nkosi's apartment was not linked to the marijuana that was stolen from Seydi and Medsker's apartment during the first burglary; the State argued that the seized marijuana was taken at the time of the murder.
As to the crimes that occurred along with Seydi's murder on October 11, 2005, and the crimes that occurred two or three days earlier, there was clearly some direct evidence-Medsker's eyewitness testimony regarding those events. Thus, as to all of those crimes, the trial court did not err, much less plainly err, by not giving an unrequested jury instruction based on former OCGA § 24-4-6. See Walker v. State,
To its credit, the Attorney General's brief concedes that the evidence of "the first burglary did appear to be circumstantial." To its discredit, the District Attorney's brief asserts that both direct and circumstantial evidence supported the State's Count 8 burglary case, but points only to the evidence set forth in Division 1, making no attempt to explain how that proof could be understood as direct evidence of Appellant's guilt.
Specifically, the court instructed:
A jury is not authorized to find a person who was merely present at the scene of the commission of a crime at the time of its perpetration guilty of consent in and concurrent of the commission of the crime unless the evidence shows beyond a reasonable doubt that such a person committed the alleged crime, or crimes, helped in the actual perpetration of the crime, or crimes, or participated in the criminal endeavor.
A jury is not authorized to find a person who is merely associated with other persons involved in the commission of a crime, or crimes, guilty of consent in or concurrent in the commission of the crime, or crimes, unless the evidence shows beyond a reasonable doubt that such person helped in the actual perpetration of the crime, or crimes, or participated in the criminal endeavor.
OCGA § 5-6-41 (d) says:
Where a trial in any civil or criminal case is reported by a court reporter, all motions, colloquies, objections, rulings, evidence, whether admitted or stricken on objection or otherwise, copies or summaries of all documentary evidence, the charge of the court, and all other proceedings which may be called in question on appeal or other posttrial procedure shall be reported; and, where the report is transcribed, all such matters shall be included in the written transcript, it being the intention of this article that all these matters appear in the record. Where matters occur which were not reported, such as objections to oral argument, misconduct of the jury, or other like instances, the court, upon motion of either party, shall require that a transcript of these matters be made and included as a part of the record. The transcript of proceedings shall not be reduced to narrative form unless by agreement of counsel; but, where the trial is not reported or the transcript of the proceedings for any other reason is not available and the evidence is prepared from recollection, it may be prepared in narrative form.
We use the terms "transcript" and "record" interchangeably in this opinion.
The parties have not explained why none of the trial participants, including the lawyers and judge, were interviewed or called as witnesses at any of the hearings relating to the attempt to complete the record. See Johnson v. State,
The court had previously issued an order on February 9, 2017, finding that the five documents are located in the discovery packet for the case and ordering counsel to determine if they could stipulate that those documents could be used to supplement the record. Appellant refused to stipulate to the documents, however, saying that his appellate counsel had no way of knowing whether the documents are the same documents referenced in the transcript. The court attached the documents from the discovery packet to its order denying Appellant's motion for new trial, but did not formally supplement the trial record. Cf. OCGA § 5-6-41 (g) (explaining that when the parties cannot agree about the correctness of a transcript prepared from recollection, "the decision of the trial judge thereon shall be final and not subject to review"); Leeks,
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