Beck v. State

FINAL COPY

                   S20A1152. BECK v. THE STATE.


      PETERSON, Justice.

      Dallas Jarvis Beck was convicted of felony murder and

possession of a weapon during the commission of a crime in

connection with the 2012 shooting death of Corey Liverpool. In

Beck’s previous appeal to this Court, we remanded the case for the

trial court to review his claim that jurors considered extrajudicial

information regarding sentencing. The trial court rejected that

claim on remand, and Beck appeals again.1 In addition to raising the



      1 The crimes occurred on August 26, 2012. On May 21, 2014, a Clayton

County grand jury indicted Beck for malice murder, three counts of felony
murder (predicated on aggravated assault, aggravated battery, and possession
of a firearm by a felony first-offender probationer), aggravated assault,
aggravated battery, possession of a weapon during the commission of a crime,
and possession of a firearm by a felony first-offender probationer. The grand
jury also indicted Lakeya Burroughs for simple battery and disorderly conduct.
Beck was tried separately from July 7 to 11, 2014, and the jury found him
guilty of all counts except malice murder. The trial court on July 17, 2014,
sentenced Beck to life in prison with the possibility of parole for felony murder
predicated on aggravated assault and five years to be served consecutively for
possession of a weapon during the commission of a crime. The other two felony
murder counts were vacated by operation of law, and the trial court purported
juror issue, Beck argues that the trial court erred by refusing to

admit various evidence about the victim and by failing to charge the

jury on voluntary manslaughter.2 Because we defer to the trial

court’s finding that the testimony about juror misconduct was not

credible, we conclude that the court did not abuse its discretion in

rejecting Beck’s juror misconduct claim. We also conclude that the

trial court properly refused to give a jury instruction on voluntary

manslaughter because no evidence supported it, and that any error

by the trial court in limiting evidence about the victim was



to merge the remaining counts into the felony murder count on which Beck was
sentenced. Beck filed a timely motion for new trial on July 18, 2014, and an
amended motion on April 28, 2015. A hearing was held on April 25, 2017, and
continued on October 10, 2017. The amended motion was denied on December
11, 2017. Beck appealed, and this Court vacated the trial court’s denial of the
motion for new trial and remanded the case in an opinion issued on March 4,
2019. See Beck v. State, 

 (

) (2019). In addition to
determining that the trial court needed to revisit Beck’s claim that he was
entitled to a new trial due to juror misconduct, this Court determined that the
evidence was constitutionally sufficient to support his convictions, and we
declined to address any issue regarding the sentences given the State’s failure
to challenge them. See 

 at 383 n.1, 384, 387. On January 3, 2020, the trial
court again denied Beck’s motion for new trial. Beck filed a timely notice of
appeal, and the appeal was docketed to the August 2020 term of this Court and
submitted for a decision on the briefs.
       2 Although Beck raised these issues in his prior appeal, we did not

address them at that time. Instead, we concluded that, if the trial court did not
grant Beck a new trial on remand, Beck would be able to raise the issues again
in a subsequent appeal. See Beck, 

 (2).
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harmless. We affirm.

     Our previous opinion summarized the trial evidence, viewed in

the light most favorable to the jury’s verdicts, as follows:

           On August 26, 2012, Beck and his girlfriend, Lakeya
     Burroughs, were both present in her apartment at
     various points throughout the day leading up to the
     shooting. That evening, two residents of the apartment
     complex, Grady Lamb and Valeriea Holiday, sat outside
     watching children and adults play basketball in the
     parking lot. Corey Liverpool and Burroughs’s son were
     among those playing. During the game, Liverpool
     accidentally knocked Burroughs’s son to the ground. The
     son then ran to Burroughs and told Burroughs that
     Liverpool, whom the son called “Uncle Killer,” was
     outside.
           Burroughs grabbed Beck’s pistol to confront
     Liverpool, but Beck took it from her before she left the
     apartment. Liverpool and Burroughs ended up at the
     sidewalk between the basketball game and Burroughs’s
     apartment, where they argued. Burroughs yelled and
     cursed at Liverpool, shoved him, “grabbed at his private
     area,” and spit on him. Lamb and Holiday, who were
     watching from their porch, testified that Liverpool
     appeared calm throughout the confrontation and kept his
     hands by his side.
           During the argument, Beck watched from the
     breezeway wall directly outside of Burroughs’s apartment
     — pistol in his waistband — approximately three to five
     feet from Liverpool and Burroughs. After Burroughs spit
     on Liverpool, Liverpool stepped toward her. Beck then
     pulled his pistol out, came between them, and stated to
     Liverpool, “I wish you would.” Before Liverpool could

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     react, Beck fired his weapon, shooting Liverpool once in
     his right eye. Liverpool collapsed, and Beck said to
     Burroughs, “I told you so, I told you so,” and fled, throwing
     his pistol into the woods behind Burroughs’s apartment
     building. Liverpool did not have a weapon.
           At trial, Beck admitted to shooting Liverpool, but
     claimed that he was acting in self-defense and in defense
     of Burroughs. Burroughs testified that after she spit on
     Liverpool, she “seen him about to hit me so I closed my
     eyes,” and then heard a shot. Beck claimed that Liverpool
     raised his hand and seemed to be either pulling a weapon
     or preparing to strike Burroughs. To support their version
     of events, Beck and Burroughs testified that they had
     known, and Burroughs had been friends with, Liverpool
     for several years; that they knew Liverpool by his
     nickname, “Killer,” and believed him to be dangerous and
     to carry a pistol at all times; and that they believed
     Liverpool was out to get Beck because of an incident
     pertaining to a stolen truck in which Beck was involved.
     Beck further testified about an incident two days before
     the shooting that he said contributed to his fear of
     Liverpool: when Beck was at a bus stop picking up
     Burroughs’s children, Liverpool — who was also there
     picking up children — flashed a pistol at Beck and made
     a threatening gesture. Beck claimed that these events led
     to his fear of Liverpool and prompted him to purchase the
     pistol that he ultimately used to kill Liverpool.

Beck v. State, 

 (1) (

) (2019).

     1.   Beck argues that he is entitled to a new trial because

jurors considered extrajudicial information regarding punishment

to reach their verdicts. We disagree.

                                  4
     Our previous opinion summarized the juror testimony

pertinent to the juror issue:

     At the motion for new trial hearing, eleven of the twelve
     jurors testified regarding this issue. [The twelfth juror
     could not attend the motion for new trial hearing because
     of medical reasons.] Three jurors, C. C., A. J., and M. H.,
     testified that the jury discussed sentencing during
     deliberations. C. C. and M. H. testified that the
     sentencing discussions did not affect their verdicts, but A.
     J. gave inconsistent testimony on this point. Moreover,
     when C. C. was asked by defense counsel whether the
     sentencing information came from other jurors, she
     responded: “No. No. It was given to us and I don’t know, I
     don’t remember who. It was, I don’t know whether, I don’t
     know. We, it, nobody brought it, like brought it to court to
     say hey look what I found. No. But, I cannot remember
     how that was done. I don’t remember.” The eight other
     jurors testified that they did not consider sentencing
     during deliberations.

Beck, 

 (2).

     OCGA § 24-6-606 (b) (“Rule 606 (b)”) provides:

           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
                                  5
     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.

Rule 606 (b) became effective along with the rest of our Evidence

Code in 2013. See Ga. L. 2011, p. 99, § 101. It is borrowed from the

Federal Rules of Evidence, so we are guided by decisions of the

federal appeals courts, especially the Eleventh Circuit, in construing

and applying it. See Beck, 

 (2). The rule “imposes

a nearly categorical bar on juror testimony.” Collins v. State, 

 (2) (

) (2020) (citation and punctuation

omitted). Although “a juror may testify to any facts bearing upon the

question of the existence of any extraneous influence,” the court may

not inquire into “the subjective effect of such information on the

particular jurors.” Beck, 

 (2) (citations and punctuation

omitted). “Information is deemed extraneous if it derives from a

source external to the jury.” 

 (citations and punctuation omitted).

We review a trial court’s decision that juror testimony is

inadmissible for an abuse of discretion. See Collins, 

-

                                  6
612 (2).

     In its initial order denying the motion for new trial, the trial

court relied expressly on C. C.’s and M. H.’s testimony that the

sentencing discussions did not affect their verdicts and also on its

finding that A. J.’s testimony about sentencing discussions affecting

her verdict was not credible. See Beck, 

 (2). In our

March 2019 decision disposing of Beck’s earlier appeal, we noted

that the parties had not briefed the meaning of the new Rule 606 (b)

before the trial court or on appeal and that the trial court had not

applied the new rule in addressing the jury misconduct issue. See

 (2). In particular, we noted that “although the trial court

determined that Juror A. J.’s testimony was not credible, it made no

finding about Juror C. C.’s credibility and made no finding as to

whether ‘extraneous prejudicial information’ was, in fact, brought

before the jurors.” 

 (2). Instead of following the

guidelines set forth in Rule 606 (b), we noted, the trial court relied

on juror testimony about internal jury deliberations — which

generally is barred by Rule 606 (b) and may not be used in

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determining whether extraneous information is prejudicial — to

conclude that even if extraneous information came before the jury,

it was not prejudicial. See 

 (2). We remanded the case so

that the trial court could apply the correct rule. See 

     On remand, the trial court found that any testimony

suggesting that any juror discussed sentencing during deliberations

was not credible. The trial court concluded that “no external

information regarding sentencing was provided to the jury by any

outside source during deliberations” and that “the substance of [C.

C.]’s subjective impressions regarding the remainder of her

deliberations, including any sentence to be imposed, falls within the

prohibited inquiry of OCGA § 24-6-606 (b).” The court also found

that even assuming A. J. had attempted to engage other jurors in

discussions regarding sentencing, any such attempted discussions

were not shown to be the result of any juror’s independent research

of the law or gathering of evidence, and there was no discussion

about sentencing between a juror and non-juror. The court

concluded that any discussion of sentencing “involved an ‘internal’

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matter which is included in the general body of experiences that

jurors are understood to bring with them to the jury room” and thus

“the substance of the jury’s deliberations and their subjective

impressions, if any, of any sentence to be imposed falls within the

prohibited inquiry of Rule 606 (b).”

     On this record, the trial court was entitled to conclude that any

testimony suggesting that the jury received information about

sentencing from an outside source was not credible. Although Beck

points to the testimony of Juror C. C. that information about

possible sentences “was given to us,” she also testified that “nobody

. . . brought it to court” and that she could not remember specifically

what had happened. And although Beck argues that M. H. and A. J.

corroborated C. C., they testified, at most, that the jury discussed

possible sentences, not that the jury received information about

sentencing from an outside source. The trial court did not abuse its

discretion in deciding that Rule 606 (b) forbade the use of the jurors’

testimony about their deliberations to impeach their verdict. See

Smith v. Nagy, 

 (6th Cir. 2020) (absent

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colorable allegation that information came from some outside

source, not unreasonable for appellate court of state with rule

similar to Federal Rule of Evidence 606 (b) to conclude that jurors’

alleged belief that the defendant would receive a relatively light

sentence for felony murder was not extraneous, but the sort of

preconceived notion that jurors bring with them to deliberations).

Compare United States v. Martinez, 

 (11th Cir.

1994) (reversing defendant’s convictions given evidence that jury

discussed news story with information on sentence that defendant

might receive if convicted, used a dictionary to define terms that

arose during deliberations, watched news accounts of the trial on

television, and regularly brought newspapers reporting trial events

into the jury room).

     2.   Beck next argues that the trial court erred by denying his

request for a jury instruction on voluntary manslaughter. We

disagree because there was no evidence to support such an

instruction.

     Beck made a written request for a charge on voluntary

                                10
manslaughter, and he objected to the court’s failure to include that

charge in its instructions to the jury, preserving the issue for

ordinary appellate review. See OCGA § 17-8-58. “If there is any

evidence, however slight, to support a properly requested charge of

voluntary manslaughter, then the trial court must give it.” Hudson

v. State, 

 (2) (a) (

) (2020) (citation and

punctuation omitted). But a charge on voluntary manslaughter is

warranted only where it can be shown that the accused “was so

influenced and excited that he reacted passionately rather than

simply in an attempt to defend himself.” Tarpley v. State, 

 (3) (a) (

) (2016) (citation and punctuation

omitted). “A charge on voluntary manslaughter is not available to a

defendant whose own statement unequivocally shows that he was

not angered or impassioned when a killing occurred, and when the

other evidence does not show otherwise.” 

 (citation and

punctuation omitted).

     Beck testified that Liverpool had threatened him days prior to

the shooting, and that he believed Liverpool was about to shoot or

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strike Burroughs just before Beck shot him. Beck also testified that

he knew Liverpool to carry a gun. But “neither fear that someone is

going to pull a gun nor fighting are the types of provocation which

demand a voluntary manslaughter charge.” Smith v. State, 

 (3) (

) (2015). And Beck testified that he was

“just scared” and acting in defense of Burroughs, himself, and

Burroughs’s family when he shot Liverpool. Therefore, the trial

court did not err in refusing to charge on voluntary manslaughter.

See Tarpley, 

 (3) (a) (trial court correctly denied

request for voluntary manslaughter instruction where defendant’s

statements and testimony did “not indicate that he killed [the

victim] out of some irresistible passion — whatever the source of

that passion — but, instead, that the killing occurred because [the

defendant] was ‘very afraid’ of [the victim] that night”); Smith, 

 (3) (no error in refusing to give voluntary

manslaughter instruction where evidence showed that shooting was

prompted by altercation involving defendant’s relatives 30 to 40

minutes before defendant arrived at the scene, and there was “no

                                 12
evidence that following his arrival appellant was taunted by the

victim or subjected to any conduct that would excite the passions of

a reasonable person”).

     3.     Beck also argues that the trial court erred by denying his

request to admit specific instances of violent conduct by Liverpool,

evidence about Liverpool’s reputation, and evidence that Liverpool

had violence-themed tattoos. We conclude that any error was

harmless.

     Prior to trial, Beck filed a notice of intent to present evidence

of various past acts of Liverpool, that he had a reputation for

carrying a firearm, and that his nickname was “Killer.” Trial counsel

also proffered that Liverpool had “tattoos of no mercy” and “a tattoo

of a gun or some other type of symbol, brandishing sort of how he

carried himself.” Following jury selection, the trial court ruled that

the defense could not introduce prior acts of violence of Liverpool

(except any involving violence against Beck); instead, the defense

could introduce only evidence as to Liverpool’s general reputation

for violence. The court also ruled that the defense could not

                                  13
introduce evidence about Liverpool’s tattoos unless the tattoos were

visible at the time that he was killed.

      Under OCGA § 24-4-404 (a) (2), a defendant is permitted to

introduce evidence of a “pertinent trait of character” of the alleged

victim.

      However, under OCGA § 24-4-405 (“Rule 405”), such
      character traits generally may be proved only with
      “testimony as to reputation or testimony in the form of an
      opinion[,]” OCGA § 24-4-405 (a), although Rule 405 (b)
      provides an exception to this rule: a character trait may
      be proved by specific instances of the person’s conduct
      when the character trait “is an essential element of a
      charge, claim, or defense or when an accused testifies to
      his or her own character,” OCGA § 24-4-405 (b).

Strong v. State, 

 (3) (

) (2020)

(punctuation omitted). A victim’s violent character is pertinent to,

but not an essential element of, a defendant’s claim of self-defense,

so it generally may be proven only by reputation and opinion

testimony. See 

 (3).3 And “[a]lthough this Court has not


      3 Beck relies on a prior decision in which this Court held that a defendant

claiming justification could introduce evidence of specific acts of violence by the
victim against third persons. See Chandler v. State, 

 (3) (b)
(

) (1991). But we since have held that this holding was abrogated

                                        14
yet decided whether, under the current Evidence Code, a victim’s

specific acts of violence of which the defendant had personal

knowledge may be admissible to show the defendant’s state of mind

with respect to a claim of self-defense,” something that federal

courts have allowed, id. at 314 (3) n.22, this case does not call on us

to decide that issue.

     Here, Beck provided notice of his intent to introduce two prior

convictions of Liverpool, a conviction for carrying a firearm without

a license and some other unspecified conviction apparently related

to selling drugs. Beck’s counsel proffered to the trial court that Beck

communicated with Liverpool while Liverpool was incarcerated,

suggesting that Beck was aware of those convictions. But Beck

makes no particular argument that either of these convictions show

“specific acts of violence” within the meaning of the federal case law.

And even assuming that the firearm possession conviction could




by the current Evidence Code. See Mohamud v. State, 

 (3) (

) (2015).

                                     15
constitute evidence of an act of violence,4 that evidence, along with

any other evidence about Liverpool’s violent character that Beck was

precluded from introducing, was cumulative of the evidence about

Liverpool that was introduced. As recounted above, the jury heard

evidence that Liverpool went by the name “Killer” and had a

reputation for being dangerous and carrying a firearm, as well as

evidence of a prior incident at a bus stop two days before the

shooting in which Liverpool flashed a pistol at Beck and made a

threatening     gesture.    Moreover,      Burroughs     testified   without

objection that Liverpool had a tattoo that said “no mercy.” And both

Beck and Burroughs testified to their belief that Liverpool was

looking to harm Beck based on an incident in which Beck was

accused of stealing a truck. Thus, any error by the trial court in

limiting evidence about Liverpool’s allegedly violent character was

harmless, as it is highly probable that any such error did not

contribute to the verdicts. See Strong, 

 (4) (trial court’s



      4 The circumstances that led to this conviction are not apparent from the

record.
                                      16
non-constitutional error requires reversal of convictions “unless [the

error] can be deemed harmless, meaning that it is highly probable

that the error did not contribute to the verdict” (citation and

punctuation omitted)); OCGA § 24-1-103 (a) (“Error shall not be

predicated upon a ruling which admits or excludes evidence unless

a substantial right of the party is affected. . . .”).5

     Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Bethel, Ellington, and McMillian, JJ., concur. Warren, J., not
participating.



                       Decided December 7, 2020.

     Murder. Clayton Superior Court. Before Judge Collier, Senior
Judge.
     Derek M. Wright, for appellant.
     Tasha M. Mosley, District Attorney, Karen S. Barbour,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, for appellee.




     5 Beck argues that the cumulative effect of the trial court’s alleged errors

denied him a fair trial. See State v. Lane, 

 (1) (

)
(2020). But there are not multiple errors to consider cumulatively.
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