Ware v. State

FINAL COPY




                       S18A1295. WARE v. THE STATE.


      WARREN, Justice.

      Demario Ware was convicted of felony murder during the commission

of an armed robbery in connection with the shooting death of Vernon Forrest.1

On appeal, Ware contends that the trial court erred when it gave the pattern

jury instruction on felony murder instead of his requested instruction on




      1
         The murder was committed on July 25, 2009. On August 25, 2009, a Fulton
County grand jury indicted Ware, J’Quante Crews, and Charmon Sinkfield for malice
murder, three counts of felony murder, aggravated assault, armed robbery, possession of a
firearm during the commission of a felony, and possession of a firearm by a convicted
felon. Ware was tried separately before a jury from August 8 to 18, 2011. The counts of
possession of a firearm by a convicted felon and the felony murder predicated on that
charge were nolle prossed and were not submitted to the jury. The jury found Ware guilty
of felony murder predicated on armed robbery and the separate count of armed robbery but
not guilty of the remaining counts. The trial court sentenced Ware to life imprisonment
without parole for felony murder, and the armed-robbery verdict merged into the felonymurder conviction. Ware filed a timely motion for new trial on September 13, 2011, which
was later amended by his new counsel on January 4, 2017. The amended motion was
denied on March 3, 2017, and Ware filed a timely notice of appeal on March 20, 2017.
The case was docketed in this Court for the August 2018 term and submitted for a decision
on the briefs.
proximate causation, and by replacing a juror during deliberations.                 We

disagree and affirm.

      1. Viewed in the light most favorable to the jury’s verdict, the evidence

presented at Ware’s trial showed that at approximately 11:00 p.m. on July 25,

2009, Ware, J’Quante Crews,2 and Charmon Sinkfield were sitting in Ware’s

red Pontiac at a Chevron gas station in Fulton County waiting for their friends,

Patrick David Wilson and Anthony Hollis, to meet them so that Crews,

Sinkfield, Wilson, and Hollis could go to a strip club together. Separately,

Vernon Forrest, who was driving a Jaguar, arrived at the gas station with his

ten-year-old nephew, E. G., who needed to use the restroom. While E. G. went

inside, Forrest began putting air in his tires. After noticing the championship-

boxing ring and diamond-encrusted watch that Forrest was wearing, Ware,

Crews, and Sinkfield discussed robbing him. Crews gave a firearm to Ware.

Ware approached Forrest as he was putting air in his tires, robbed him at

gunpoint, and fled on foot. Forrest then pulled out his own gun and began




      2
         Crews was convicted of Forrest’s murder and other offenses, and we have already
affirmed Crews’s convictions, vacated a portion of his sentence, and remanded that case
for resentencing. Crews v. State, 

 (

) (2016).
chasing Ware in an effort to get his stolen items back. Ware ran to a nearby

apartment complex where he hid from Forrest.

      Meanwhile, before the robbery occurred, Wilson and Hollis had arrived

at the service station in a blue Expedition, and Sinkfield got into their vehicle.

While Forrest was chasing Ware, Crews drove the Pontiac out of the gas

station, and Wilson, Hollis, and Sinkfield separately drove away in the

Expedition. After a phone conversation with Crews, Sinkfield had Wilson

drop him off at the nearby apartment complex where Forrest had chased Ware,

and where Ware was hiding from Forrest. Sinkfield encountered Forrest and,

after a confrontation that appeared to eyewitnesses to be resolved, Sinkfield

shot Forrest in the back several times as Forrest tried to walk away, killing him.

Crews then picked up Ware from the apartment complex where Ware had been

hiding, dropped Ware off near Ware’s home, and then picked up Sinkfield,

before the three men later reconvened at Ware’s home.

      In addition to several witnesses who later testified that the events

transpired as described above, E. G. also identified Ware from a photographic

lineup, and then later at trial, as the person he saw robbing Forrest; surveillance

footage showed the events that occurred at the gas station; and Ware himself
admitted to the robbery but maintained that there was never any plan or

discussion beyond the robbery itself.

      Ware does not contest the legal sufficiency of the evidence supporting

his conviction. Nevertheless, in accordance with this Court’s practice in

murder cases, we have reviewed the record and conclude that, when viewed in

the light most favorable to the verdict, the evidence presented at trial and

summarized above was sufficient to authorize a rational jury to find Ware

guilty beyond a reasonable doubt of felony murder predicated on armed

robbery. See Jackson v. Virginia, 

 (

, 61 LE2d

560) (1979); Crews v. State, 

 (

) (2016).

      2. Ware contends that the trial court erred by failing to give his requested

jury instruction on proximate causation. Ware requested that the trial court

specifically charge the jury that “[c]auses the death of another” in the definition

of felony murder “refers to proximate cause,” see State v. Jackson, 

 (

) (2010), and that “[n]o legal cause will be found where

there intervenes: (1) a coincidence that is not reasonably foreseeable, or (2) an

abnormal response,” see Skaggs v. State, 

 (

)

(2004). Ware argues that this instruction was necessary for the jury to evaluate
the defense theory that Forrest’s death, which was caused by Sinkfield, was

not part of Ware’s initial robbery but was a separate and distinct act.

      The trial court did, however, properly define felony murder as follows:

“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.” (Emphasis supplied.) See OCGA § 16-5-1 (c). And the court later

gave the pattern jury instruction that explains the requisite legal relationship

between the felony and the death as follows:

            If you find and believe beyond a reasonable doubt that the
      defendant committed the homicide allege[d] in this [bill] of
      indictment at the time the defendant was engaged in the
      commission of the felony of aggravated assault or armed robbery,
      then you would be authori[zed] to find the defendant guilty of
      murder whether the homicide was intended or not. In order for a
      homicide to have been done in the commission of either of these
      felonies, there must be some connection between the felony and
      the homicide. The homicide must have been done in carrying out
      the unlawful act and not collateral to it. It is not enough that the
      homicide occurred soon or presently after the felony was attempted
      or committed. There must be such a legal relationship between the
      homicide and the felony so as to cause you to find that the
      homicide occurred before the felony was at an end or before any
      attempt to avoid conviction or arrest for the felony. The felony
      must have a legal relationship to the homicide, be at least
      concurrent with it in part and be a part of it in an actual and material
      sense. A homicide is committed in carrying out a felony when it
      is committed by the accused while engaged in the performance of
      any act required for the full execution of the felony.
See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th

ed. 2007, updated Jan. 2017), § 2.10.30. Having read the indictment to the jury

earlier, the trial court sent out with the jury a redacted indictment including the

felony murder count that tracked the causation language of the felony murder

statute. The trial court also thoroughly instructed the jury on the predicate

felonies that were charged and on parties to a crime.

      “When viewed as a whole, these charges were sufficient to instruct the

jury on the principles of proximate causation relevant to this case.” Brown v.

State, 

 (

) (2015). See also Williams v. State,

 (

) (2015) (“[T]he instructions as a whole

properly informed the jury that in order to convict for felony murder, it was

required to determine appellant caused or was a party to the crime in causing

the victim’s death as a result of appellant’s commission of the underlying

felonies. Accordingly, the trial court was not required to give a separate charge

on proximate causation. [W]e find no error in the trial court’s charge as alleged

in this enumeration of error, ‘plain or otherwise.’” (citation omitted)); Whiting

v. State, 

 (

) (2015) (the indictment and jury

charge were “sufficient to inform the jury that, in order to convict [the

defendant] of the felony murder of [the victim], it had to determine that [the
defendant] caused or was a party with [the shooter] in causing the victim’s

death during the [predicate offense]. Indeed, the charge given adequately

informed the jury that [the defendant] could only be found guilty of felony

murder if the [predicate felony] was the proximate cause of [the victim’s]

death. The trial court was not required to give a separate charge on proximate

causation in order to make this point.” (citations and punctuation omitted));

Flournoy v. State, 

 (

) (2014) (“The trial court’s

instruction on felony murder and party to a crime, which referenced the

allegations of the indictment, was sufficient to inform the jury that, in order to

convict, it had to determine Flournoy caused or was a party in the causing of

[the victim’s] death, and thus no error is shown by the trial court’s failure to

give a charge on proximate cause.”).

      Ware’s reliance on Skaggs is misplaced. The language that he quotes

from Skaggs, 

, is part of a discussion of the sufficiency of the

evidence of causation — not an instruction that was given to the jury in that

case. But explanatory language in prior case law is not required to be included

in jury instructions at a defendant’s request. See Pecina v. State, 

 (

) (2001) (“[E]ven though language used by the appellate

courts in a decision may embody sound law, it is not always appropriate to
employ such language in instructing the jury.” (citation and punctuation

omitted)). Moreover, our review of the archived record in Skaggs shows that

the causation instruction approved by this Court, see Skaggs, 

,

and given in Skaggs was virtually identical to the language used by the trial

court in this case. As a result, Skaggs undermines, rather than supports, Ware’s

argument here. Accordingly, the trial court did not err in failing to give Ware’s

requested jury charge on proximate cause.

      3. Ware also contends that the trial court erred when it removed a juror

during deliberations and replaced her with an alternate juror. We disagree

because the trial court did not abuse its broad discretion to replace a juror with

an alternate for good cause.

      On the first day of trial, August 8, 2011, after discussing the expected

length of trial with the attorneys, the trial court told the venire that “the case

may last approximately five days,” but that there was an “outside possibility

that the case could run over til[ ] the first part of next week.” The court asked

if it would be a hardship for any prospective juror to be at trial for “the next

five days, possibly going into next week.” The juror at issue here did not

indicate that she expected any hardship during that time.
      As it turned out, however, jury deliberations did not begin until late

afternoon on Monday, August 15, 2011, in the second week of trial. On

Tuesday, August 16, the juror at issue informed the trial court that she and her

husband had airline tickets to fly from Atlanta to Houston the next day for a

wedding scheduled to take place on Saturday, August 20. The court instructed

the juror to contact the airline that evening to see if modifications could be

made to her flight reservation. The next morning, Wednesday, August 17, the

juror informed the court that it would cost an extra $660 to change the tickets

to a later day that week. The court informed the parties that the juror would

have to leave by 1:00 p.m. to make her original flight, and asked the parties for

input about whether or not the court should excuse the juror for this hardship.

The prosecutor had no objection to an excusal, but the defense requested “that

she be kept on the jury” and offered to bear the full expense of the change in

flight reservations. The prosecutor argued that it would not be appropriate for

defense counsel to pay for a juror’s travel, even if the money were paid through

the court and not directly from a party. The trial court suggested that the juror

would not be informed of the source of the funds, so as to not create bias, but

the court also noted its concern that deliberations could potentially last until

Saturday, the date of the wedding that the juror was trying to attend in Houston.
       After further discussion about unrelated matters, the court stated that “in

light of the time,” it had made a decision to excuse the juror and put an alternate

on the jury. The court noted that the juror’s excusal was over the defense’s

previous objection. When defense counsel wanted to know if it was the juror’s

desire to be excused, the trial court had her brought into the courtroom and

asked her if she wanted to be excused. She replied that she would like to be

excused due to “the affordability of the difference in . . . airfare.” The trial

court excused the juror and replaced her with an alternate. Ware argues that

there was not good cause under OCGA § 15-12-172 to excuse the juror as

unable to perform her duty, especially given defense counsel’s offer to pay the

additional costs for a change of flights with the juror being told only that the

money came from the court.

       A trial court may replace a juror with an alternate whenever the juror

“upon other good cause shown to the court is found to be unable to perform his

duty[.]”    OCGA § 15-12-172.3              And the “court has broad discretion to

determine whether it is appropriate to remove a juror.” Smith v. State, 

         The entire first sentence of OCGA § 15-12-172 provides: “If at any time, whether
before or after final submission of the case to the jury, 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, the first alternate juror shall take the place of the first juror becoming
incapacitated.”
357, 360 (

) (2016). The trial court may remove a juror even after

deliberations have begun, see OCGA § 15-12-172 (court may replace a juror

with an alternate as provided in the statute “at any time, whether before or after

final submission of the case to the jury”), so long as the facts presented to the

court show “some sound basis” upon which the court exercises its discretion

to remove the juror. Butler v. State, 

 (

) (2012)

(citation and punctuation omitted).

      Based on the trial court’s statements and questioning during voir dire,

the juror at issue here had a reasonable expectation that she would be

discharged prior to her scheduled flight. See Laguerre v. State, 

 (

) (2017) (explaining that it was proper to consider the

“reasonable expectation of discharge” by multiple jurors in the context of

determining the necessity for a mistrial).       And even assuming (without

deciding) that defense counsel paying for the cost of the juror’s changed flight

through the court would have been proper, it would not necessarily have

resolved her scheduling conflict if deliberations had continued beyond two

more days, as the court acknowledged was possible.              Courts in other

jurisdictions have held that “good cause,” which “may encompass any of the

inevitable vagaries of the many trial participants’ complex lives,” includes
prearranged business or personal travel plans, whether they come to light

during voir dire or not. See, e.g., United States v. Jones, 

,

355 (6th Cir. 2018) (summarizing federal case law about what constitutes good

cause, and holding that the district court did not abuse its discretion in replacing

a juror because of her prearranged travel plans and business obligations that

came to light after the jury was sworn); Commonwealth v. Colton, 

 (Mass. 2017) (“[W]e cannot say on this record that the judge abused

his discretion by empanelling and later discharging the juror due to the juror’s

impending flight.”). Thus, a trial court’s broad discretion is properly exercised

in such cases after due consideration of the totality of the circumstances

surrounding the juror’s travel plans. See Cummings v. State, 

, 834-

835 (

) (2006) (trial court did not abuse its discretion in replacing

a juror for good cause under OCGA § 15-12-172 based on the “totality of the

circumstances”); Hines v. State, 

 (

) (2013)

(trial court did not abuse its discretion in removing a juror because of his travel

plans, considering his admitted distraction and irritation during deliberations).

In this case, the trial court considered and weighed the relevant circumstances,

including the length of the trial that exceeded expectations, the juror’s financial

concerns and desire to be excused, the sensitive nature of defense counsel’s
proposal to pay the juror’s increased expenses even if the court acted as a

conduit for such payment, and the potential for a repeat of the scheduling

conflict later in the week. Under the circumstances, the trial court did not abuse

its discretion by replacing the juror during deliberations with an alternate

juror.4

       Judgment affirmed. All the Justices concur.




       4
         We note that Ware does not claim, and the record does not show, that the juror at
issue was a “holdout” or in the minority, much less that she was removed for that reason.
See Moon v. State, 

 (

) (2011). Cf. Wallace v. State, 

 (

) (2018) (“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.”). And Ware “does
not contend that the alternate juror who replaced [the removed juror] was not qualified to
serve.” Butler, 

 (citation and punctuation omitted).
                            Decided March 11, 2019.

      Murder. Fulton Superior Court. Before Judge Dempsey.

      Juwayn Haddad, for appellant.

      Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C.

Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Jason M. Rea, Assistant Attorney

General, for appellee.