Collins v. State

FINAL COPY

                 S20A0195. COLLINS v. THE STATE.


      MELTON, Chief Justice.

      Renita Collins was tried for murder along with co-defendant

Michael Stallworth.1 Collins appeals her convictions for murder and

possession of a firearm during the commission of a felony in

connection with the shooting death of Keith Jacobs.2                   Collins




      1 We note that this Court previously affirmed the conviction of Stallworth

in Stallworth v. State, 

 (

) (2018).
      2 On June 3, 2011, a Fulton County grand jury indicted Collins and

Stallworth for malice murder, two counts of felony murder predicated on
aggravated assault, aggravated assault, aggravated assault with a deadly
weapon, and possession of a firearm during the commission of a felony.
Following a jury trial that ended on January 31, 2012, Collins and Stallworth
were found guilty of all counts. The trial court sentenced Collins to life in
prison for malice murder with five consecutive years for possession of a
firearm. Although the trial court purported to merge the two felony murder
counts into the malice murder count, those counts were actually vacated by
operation of law. Malcolm v. State, 

 (4) (

) (1993). The
remaining counts merged for purposes of sentencing. On February 17, 2012,
Collins filed a motion for new trial, which she amended on May 14, 2015 and
July 15, 2015. Following two hearings, the trial court denied the motion on
February 25, 2016. Collins filed an untimely notice of appeal on June 21, 2016.
On August 16, 2019, the trial court granted Collins’s unopposed motion seeking
an out-of-time appeal, after which Collins filed a timely notice of appeal. Her
case, submitted for a decision on the briefs, was docketed to the term of this
Court beginning in December 2019.
contends that she was denied a fair trial due to juror misconduct,

the trial court abused its discretion by not allowing her to subpoena

juror testimony to show that misconduct had occurred, and the trial

court abused its discretion when it failed to excuse a prospective

juror for cause. For the reasons set forth below, we affirm.

     1. As was also the case in Stallworth v. State, 

-334

(1) (

) (2018), viewed in the light most favorable to the

verdicts, the evidence presented at trial shows that, on the evening

of March 2, 2011, Jacobs and his fiancée, Cassandra Horns, were

sitting on the front porch of his Fulton County home when Collins

walked up to the edge of the yard. Collins began yelling at Jacobs

about Jacobs’s dog and threatened to shoot the dog the next time it

barked at her. Jacobs and Collins got into a heated argument.

Collins left, saying that she would return, and walked to her house,

which was nearby.

     Jacobs’s brother, Michael Walker, came out of Jacobs’s house

to try to calm Jacobs down. Moments later, Collins returned to

Jacobs’s house with Stallworth. A new argument ensued. Horns
and Walker both left the porch and went in the house. Shortly

thereafter, they heard gunshots. Walker ran outside to find Jacobs

fatally wounded from a gunshot to the back of the head.

     Multiple witnesses testified that Collins argued with Jacobs,

walked to Collins’s home, returned to Jacobs’s house with

Stallworth, continued an argument with Jacobs, and then multiple

gunshots were fired. Several witnesses saw people matching Collins

and Stallworth’s descriptions fleeing from the direction of Jacobs’s

house. One witness saw Collins with a gun just before the shooting,

and another witness saw a person matching Stallworth’s description

with a gun immediately after the shooting. Two witnesses identified

Stallworth from a photographic lineup, and one witness identified

Collins from a photographic lineup.

     Although Collins does not challenge the sufficiency of the

evidence supporting her convictions, as is our customary practice in

murder cases, we have reviewed the record and conclude that the

evidence presented at trial was sufficient for the jury to find Collins

guilty beyond a reasonable doubt of the crimes for which she was
convicted. Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979). See also 

 (1).

     2. Collins asserts that she was denied a fair trial due to juror

misconduct. Specifically, she contends that several jurors, in a post-

trial conversation with Stallworth’s defense counsel, questioned why

Stallworth had not testified, and that these questions about

Stallworth show that the jurors also held Collins’s failure to testify

against her, thereby raising a presumption of prejudice against her.

We disagree.

     The record shows that, at the conclusion of Collins and

Stallworth’s trial, the trial court instructed the jury regarding the

defendants’ presumptions of innocence and to not consider either

defendant’s election not to testify when determining guilt or

innocence.     Immediately following the publishing of the guilty

verdicts, counsel for the parties met with the jurors. A subset of

approximately four jurors asked Stallworth’s trial counsel why

Stallworth had not testified. Stallworth’s counsel responded that
Stallworth had the constitutional right not to testify. When a juror

asked again why Stallworth had not testified, his counsel did not

answer and redirected the conversation.

     At the hearing on Collins’s motion for new trial, Stallworth’s

counsel testified that none of the jurors indicated they had drawn a

negative inference from Stallworth’s failure to testify. The trial

court’s staff attorney, who was in attendance at the post-trial

meeting, testified that the jurors’ questions “seemed to go a little bit

beyond curiosity” and that he “got the impression that they were

considering [it] in their deliberations.”

     Collins argues that, although the trial court properly

instructed the jury, the jurors engaged in misconduct by not

following those instructions. She relies on the attorneys’ testimony

about their concerns with the jurors’ post-trial questions to establish

this misconduct. She further argues that the trial court erred by not

allowing her to subpoena jurors to help her meet her burden of

showing juror misconduct. However, because neither the attorneys’

impressions about what the jurors may have considered during their
deliberations nor the jurors’ own testimony about their deliberations

is admissible evidence, Collins’s claim of juror misconduct fails.

     Longstanding common law principles prohibit using juror

statements or testimony to impeach their own verdict. See Tanner

v. United States, 

 (II) (

, 97 LE2d 90)

(1987). This prohibition is embodied within Federal Rule of Evidence

606, from which Georgia adopted its current rule regarding the

admissibility of juror testimony. See United States v. Brown, 

 (III) (B) (3) (11th Cir. 2019). See also Beck v. State,

 (2) (

) (2019). OCGA § 24-6-606 states,

in relevant part:

           Upon an inquiry into the validity of a verdict or
     indictment, a juror shall not testify by affidavit or
     otherwise nor shall a juror’s statements be received in
     evidence as to any matter or statement occurring during
     the course of the jury’s deliberations or to the effect of
     anything upon the jury deliberations or any other juror’s
     mind or emotions as influencing the juror to assent to or
     dissent from the verdict or indictment or concerning the
     juror’s mental processes in connection therewith;
     provided, however, that a juror may testify on the
     question of whether extraneous prejudicial information
     was improperly brought to the juror’s attention, whether
     any outside influence was improperly brought to bear
     upon any juror, or whether there was a mistake in
     entering the verdict onto the verdict form.

OCGA § 24-6-606 (b) (“Rule 606 (b)”).3             As both the attorney

testimony regarding juror statements made during the post-trial

conversation, and the juror testimony Collins seeks in order to

bolster her claim, fall within Rule 606 (b)’s prohibition against using

juror testimony or statements to impeach a verdict, Collins has

failed to produce admissible evidence of juror misconduct.

     Collins contends that the jury’s alleged consideration of her

choice not to testify, by itself, constitutes extraneous prejudicial

information and, therefore, the jurors’ testimony on the issue falls

within Rule 606 (b)’s exceptions. That is incorrect.

     Georgia’s Rule 606 (b) is borrowed from Federal Rule of

Evidence 606 and, as such, when interpreting its meaning, we are

guided by the decisions of federal appeals courts and particularly

the Eleventh Circuit.      Beck, supra, 

 (2). The


     3 The hearing on Collins’s request to subpoena jurors occurred on October

8, 2015. Therefore, the admissibility of evidence at that hearing is governed
by the provisions of the current Evidence Code, which went into effect on
January 1, 2013. See Ga. L. 2011, p. 99, § 101.
Eleventh Circuit has stated that Rule 606 (b) “imposes a nearly

categorical bar on juror testimony.” (Citation and punctuation

omitted.) United States v. Foster, 

 (III) (D) (11th

Cir. 2018). When interpreting Rule 606 (b)’s exception regarding

extraneous    prejudicial   information,    the    Eleventh    Circuit

distinguishes between “external” information, which comes from a

source outside the jury, and “internal” matters, which include

statements made during deliberations. 

 (III) (D). All

federal appellate courts to have considered whether jurors’

discussions regarding a defendant’s decision not to testify fall within

Rule 606 (b)’s exception for extraneous prejudicial information have

consistently held that such discussions do not, by themselves,

constitute “external” information about which jurors can testify. See

United States v. Friedland, 660 F2d 919, 927-928 (3d Cir. 1981)

(inquiry into whether jurors had considered and discussed

defendant’s failure to testify fell “squarely within the prohibition of

Rule 606 (b),” because such discussion did not stem from extraneous

prejudicial information or an outside influence); United States v.
Martinez-Moncivais, 

 (II) (B) (5th Cir. 1994)

(jurors’ post-trial statements that an innocent defendant would have

testified in his own defense did not fall within the exceptions to the

rule prohibiting admission of juror testimony to impeach a verdict);

United States v. Kelley, 

 (II) (D) (6th Cir. 2006)

(because defendant’s failure to testify was simply “part of the trial”

and jurors did not learn of the failure to testify through improper

channels, such information does not fall within Rule 606 (b)’s

exceptions) (citation and punctuation omitted); United States v.

Tran, 

 (II) (8th Cir. 1997) (defendant’s failure to

testify did not constitute extraneous information because jurors

learned of it as a result of their presence at trial rather than from

events or persons outside the courtroom); United States v.

Rutherford, 

 (II) (9th Cir. 2004) (where information

does not come from outside source, juror testimony about discussion

of a defendant’s failure to testify during deliberations is

inadmissible); United States v. Voigt, 877 F2d 1465, 1469 (II) (10th

Cir. 1989) (juror statement that defendant was found guilty because
of her failure to testify was not extraneous or outside information,

rather was the type of internal deliberation about which Rule 606

(b) prohibits jurors from testifying). Thus, the trial court did not

abuse its discretion when it ruled that the juror testimony sought by

Collins was inadmissible. In addition, as Collins has not presented

any other admissible evidence under Rule 606 (b) that supports her

claim of juror misconduct, her claim fails.

      3.   Next, Collins contends that the trial court abused its

discretion by failing to strike Juror 18 for cause.4 The record shows

that during voir dire, Juror 18 was asked if his personal life

experiences would affect his ability to be fair and impartial in this

case. He responded, “I think [they] might.” He was asked if he could

judge the evidence in this case and come to a verdict that speaks the

truth, and he responded, “Yes.” When asked if the fact that the


      4 Collins begins this section of her brief by asserting that the trial court

erred by not excusing both Juror 18 and Juror 24 for cause. However, other
than a bare assertion that Juror 24 “expressed bias,” the remainder of this
section only contains factual and legal argument regarding Juror 18. As
Collins does not provide citation to legal authority or legal analysis regarding
Juror 24, her argument regarding that juror is deemed abandoned under
Supreme Court Rule 22. See Henderson v. State, 

 (3) (f) (

) (2018).
defendants had been indicted tilted the scale against them, he

responded, “A little bit, yeah.” He was also asked if it was fair to say

that, due to the existence of the indictment and his “conservative

leaning,” he was not fair and impartial, and he responded, “That’s a

fair statement.” Juror 18 was then asked if he could follow the

instructions from the Court and listen to the evidence and reach a

verdict that speaks the truth from what he learned in the courtroom.

He responded, “I believe I could — I don’t know if I could do a clean

slate, but if I listened to the facts — and both sides’ arguments, I

think I could.”

     “Whether to strike a juror for cause lies within the sound

discretion of the trial judge, and the trial court’s exercise of that

discretion will not be set aside absent a manifest abuse of

discretion.” (Citation omitted.) Poole v. State, 

 (3)

(

) (2012).

     For a juror to be excused for cause, it must be shown that
     he or she holds an opinion of the guilt or innocence of the
     defendant that is so fixed and definite that the juror will
     be unable to set the opinion aside and decide the case
     based upon the evidence or the court’s charge upon the
     evidence. A prospective juror’s doubt as to his or her own
     impartiality does not demand as a matter of law that he
     or she be excused for cause. Nor is excusal required when
     a potential juror expresses reservations about his or her
     ability to put aside personal experiences. A conclusion on
     an issue of bias is based on findings of demeanor and
     credibility which are peculiarly in the trial court’s
     province, and those findings are to be given deference.

(Citation and punctuation omitted.) Brockman v. State, 

 (9) (

) (2013). In light of these principles and the

record before us, we conclude that, although Juror 18 expressed

some initial doubts, the trial court did not abuse its discretion in

finding that the juror had not expressed an opinion of guilt or

innocence that was so fixed that he would be unable to decide the

case based on the evidence presented at trial and the charge of the

trial court. See 

     Judgment affirmed. All the Justices concur.

                      DECIDED MAY 4, 2020.
     Murder. Fulton Superior Court. Before Judge Glanville.
     Derek M. Wright, 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,
Katherine D. Emerson, Assistant Attorney General, for appellee.