310 Ga. 552
FINAL COPY
S20A1353. HEINZE v. THE STATE.
BETHEL, Justice.
A Glynn County jury found Guy William Heinze, Jr., guilty of
the malice murders of Brenda Flanagan, Guy Heinze, Sr., Russell
Toler, Sr., Chrissy Toler, Russell Toler, Jr., Michael Toler, Michelle
Toler, and Joseph West; the aggravated assault of B. J., a child; and
two drug possession offenses. On appeal, Heinze argues only that
the trial court erred by improperly removing a juror during
deliberations and replacing that juror with the first alternate juror.
Seeing no error, we affirm.1
1 The crimes occurred on August 29, 2009. On September 14, 2009, a
Glynn County grand jury returned an indictment charging Heinze with eight
counts of malice murder (Counts 1-8), aggravated assault (Count 9), unlawful
possession of a Schedule IV narcotic, propoxyphene (Count 10), and unlawful
possession of less than an ounce of marijuana (Count 11). On February 23,
2012, Heinze filed a motion to quash the indictment, alleging that a member
of the grand jury that returned the indictment was ineligible to serve due to a
felony conviction. On May 23, 2012, a new grand jury returned a second
indictment against Heinze charging him with the same offenses. On May 29,
2012, the State filed a notice of intent to seek the death penalty against Heinze.
On August 3, 2012, the trial court entered an order of nolle prosequi on the
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. Heinze resided in
the New Hope community in Glynn County with his father, Guy
Heinze, Sr., and several members of the Toler family. In the late
summer of 2009, Heinze told a co-worker about a dispute with his
father over money that his father planned to give to other members
first indictment. Pursuant to that order, the motions and hearings under the
first indictment were transferred to the second indictment. On December 3,
2012, pursuant to the Unified Appeal Procedure, Heinze petitioned this Court
for interim review of that order and a number of other unrelated rulings. On
February 4, 2013, this Court denied interim review. See Case No. S13R0565.
A jury trial was held from October 15 to 25, 2013. During that trial, the
death penalty was initially sought by the State, but the State later withdrew
its notice of intent to seek the death penalty pursuant to an agreement of the
parties. The jury found Heinze guilty on all counts. On October 31, 2013, the
trial court sentenced Heinze to life imprisonment without the possibility of
parole for each of the eight counts of malice murder (Counts 1-8). The trial
court ordered that Counts 1 and 2 run concurrently with each other, that
Counts 3 and 4 run concurrently with each other but consecutive to Counts 1
and 2, that Counts 5 and 6 run concurrently with each other but consecutive
to Counts 3 and 4, and that Counts 7 and 8 run concurrently with each other
but consecutive to Counts 5 and 6. The trial court also sentenced Heinze to a
term of twenty years’ imprisonment for Count 9 to run concurrently with
Counts 1 and 2, a term of five years’ imprisonment for Count 10 to run
concurrently with Counts 1 and 2, and a term of imprisonment of twelve
months for Count 11 to run concurrently with Counts 1 and 2.
Heinze filed a motion for new trial on November 21, 2013, which he
amended three times through new counsel. Following a hearing held on
December 11, 2018, the trial court denied that motion on February 20, 2020.
Heinze filed a notice of appeal directed to this Court on February 21, 2020.
Heinze’s case was docketed to this Court’s August 2020 term, and oral
arguments were held on October 20, 2020.
2
of his family. Heinze said, “Man, my daddy ain’t never done nothing
for me and my brother. Man, I’m going to kill him, I’m gonna kill ‘em
all.” Heinze had also gotten into a fight with Russell Toler, Jr., about
his car and had told his co-worker that he was going to beat Chrissy
Toler if she did not arrange a date for him with her friend.
On the morning of August 29, 2009, Heinze’s neighbor saw a
car arrive at Heinze’s home. Five minutes later, the neighbor saw
Heinze running from his home, screaming for help and waving his
hands. The neighbor and another man met Heinze outside, and
Heinze kept screaming “my whole family’s dead” and said that it
looked like everyone in the home had been beaten to death. At 8:18
a.m., the neighbor called 911. She began speaking with the dispatch
official and then handed the phone to Heinze, who began yelling that
his family had been beaten to death and that he needed help. The
neighbor and the other man later testified that they did not see
Heinze bring anything out of his home that morning or put anything
into the car parked in front of the home.
While waiting on police to arrive, Heinze went back inside the
3
home and yelled to his neighbor that Michael Toler was still alive.
Police arrived and found Heinze and his neighbor on the home’s
front steps.2 Upon entering the home, police determined that there
were nine victims inside. Brenda Flanagan, Guy Heinze, Sr., Russell
Toler, Sr., Chrissy Toler, Russell Toler, Jr., Michelle Toler, and
Joseph West were dead; and Michael Toler and B. J. were seriously
injured. Michael Toler later died at the hospital. B. J., who was three
years old at the time, survived his injuries.
According to the medical examiner, the victims had been
severely beaten, each sustaining head injuries with a blunt,
cylindrical object similar in shape to a gun barrel. Russell Toler, Jr.,
had also been stabbed. The medical examiner testified that each of
the victims who were killed had died from the head injuries they
sustained. Police found blood spattered throughout the interior of
2 Heinze’s dog was tied to a post on the front porch, and he and his
neighbor were trying to restrain the dog as police arrived. The neighbor and
another witness testified that Heinze’s dog regularly barked if anyone came to
the home that was not a family member. Both testified that they had not heard
the dog bark the night before.
4
the home and blood stains in the areas immediately surrounding the
victims’ bodies.
The police spoke with Heinze at the scene.3 Heinze told police
that he checked each person in the home for a pulse and discovered
that everyone was dead except B. J. and Michael Toler. Heinze
stated that he then ran to a neighbor’s home to call 911. He also told
police that after calling 911 he returned to the mobile home and sat
next to Michael Toler until the police arrived.
Police also asked Heinze if there were any weapons kept in the
home. Heinze said there was a 20-gauge shotgun in the house and a
16-gauge shotgun in the trunk of the car he had been driving. Heinze
told the officer that the gun in his car had been removed from a
closet in the bedroom where Michael Toler and Russell Toler, Sr.,
had been found. Heinze told police that he removed the gun after
discovering the victims in the home because the gun had been
3 The officers who interacted with Heinze outside the home testified that
Heinze was not under arrest at the time and was not yet a suspect.
5
stolen.4 Records established, however, that the 16-gauge shotgun
was not stolen. The broken stock of a 20-gauge shotgun was found
in the house next to the body of Russell Toler, Sr., but the barrel of
that gun was never recovered.
Heinze gave the police permission to look in the trunk of the
car. Inside the trunk, the police found the 16-gauge shotgun, which
had dried blood on its wooden stock, on the right side of the barrel,
and on and around the trigger. The blood belonged to Russell Toler,
Sr., and a fingerprint found in the blood stain on the shotgun
belonged to Heinze. Inside the car, the police also found a bag of
marijuana and a bottle containing propoxyphene pills, a sedative
that had been prescribed to Michael Toler. Police also found Michelle
Toler’s cell phone in the car, which was covered in West’s blood.
When he was speaking with police outside the home, Heinze
was wearing a polo shirt, khaki shorts (worn over a pair of silver and
4 Officers testified that in order to get to the closet in the home where
Heinze said the gun had been stored, Heinze would have had to step over the
body of one of the victims who was found dead in that bedroom. The officer
testified that the room was in disarray and that there was “a lot of blood” in
that room.
6
black gym shorts), and a pair of sandals. Heinze had no blood on his
hands, and although he had scratches on his hands, he was not
bleeding. However, there were several blood smears on the bottom
of his outer khaki shorts, on the silver and black shorts, and on the
tops of his sandals. The blood on Heinze’s khaki shorts belonged to
Russell Toler, Sr. The blood found on the black and silver shorts
belonged to Michael Toler, Russell Toler, Sr., and Chrissy Toler. The
blood on the top of his sandals belonged to West and Guy Heinze, Sr.
In the same bedroom where the body of Russell Toler, Sr., was
found, police located a document on a night stand with a smear of
blood from Russell Toler, Sr., on it. In the blood smear were
fingerprints belonging to Heinze. Police also located a knife in the
living room of the mobile home that had blood from Russell Toler,
Jr., on its tip.
Heinze told police officers that the evening before, he bought
cocaine from West and that they then smoked cocaine and
marijuana together in the home. However, a toxicology analysis
showed that West did not have cocaine or marijuana in his system
7
when he died. Heinze, however, was found to have cocaine,
marijuana, and propoxyphene in his system.
Heinze gave varying accounts of his whereabouts on the night
the crimes were committed that were contradicted by the testimony
of other witnesses. Witnesses who encountered him that evening
described him as appearing to be tense and nervous and that he
seemed to be under the influence of drugs.
The State’s theory was that the evidence showed that Heinze
entered the bedroom where Russell Toler, Sr., was sleeping and
began fighting with him over pills that belonged to Michael Toler.
Next, Heinze killed Toler, Sr., after a struggle, beat Michael Toler
after he woke up in the midst of that struggle, then attacked the
other victims as they slept in other areas of the home. The State
contended that Heinze took money from the home and that the need
for money was one of the motives for committing the crimes.5
5 The lead detective in the investigation summarized this theory during
cross-examination by Heinze’s counsel. He further testified that Heinze had
$391 in cash in his wallet when he was taken to the police station. In processing
the crime scene, Russell Toler, Jr., was found to have $61 in cash in his pocket.
8
Though not raised by Heinze as error, in accordance with this
Court’s practice in appeals of murder cases,6 we have reviewed the
record and determined that the evidence, as summarized above, was
sufficient to enable a rational trier of fact to find Heinze guilty
beyond a reasonable doubt of the crimes of which he was convicted.
See Jackson v. Virginia, 443 U. S. 307 (
99 SCt 2781, 61 LE2d 560)
(1979). See also Brown v. State,
302 Ga. 454, 456 (1) (b) (
807 SE2d
369) (2017) (“It was for the jury to determine the credibility of the
witnesses and to resolve any conflicts or inconsistencies in the
evidence.” (citation and punctuation omitted)).
2. Heinze argues that the trial court erred by removing one of
the jurors while the jury was deliberating. Because, as explained
below, we determine that Heinze affirmatively waived any claim of
error in regard to the juror’s removal, this enumeration of error fails.
No other victims had any money on them, and there was no other money found
in the house.
6 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, 309 Ga.
385, 399 (4) (b) (
846 SE2d 83) (2020). The Court began assigning cases to the
December term on August 3, 2020.
9
The record reflects that, during jury selection, Juror 152, who
was a retired federal law enforcement officer, disclosed a
relationship between his daughter and the Heinze family. Juror 152
stated that his daughter attended the same school as Heinze, that
she was his friend, that she was sad to learn about the killings for
which he had been charged, and that she did not “understand how
something like that could happen.” Juror 152 indicated that his
daughter had been afraid when she learned of the killings, but she
said that she had never known Heinze to be a violent person. Despite
these disclosures, neither party moved to strike Juror 152 for cause
or exercised a peremptory strike to remove him. He was seated as a
member of the jury.
The jury was sequestered after it was empaneled. The State
raised a number of concerns about the conduct and impartiality of
Juror 152 during the course of the trial and the first two days of the
jury’s deliberations and moved three times to have Juror 152
10
excused.7 The trial court denied the State’s motion each time.
Later, in the early afternoon of the second day of deliberations
while Juror 152 remained on the jury, the court was informed that
the jury had reached a unanimous verdict as to some counts, but
that it was divided nine to three as to other counts. After an inquiry,
the trial court determined that the jury was not hopelessly
deadlocked and ordered the jurors to continue deliberating. Later
that evening, the court was informed that two jurors had concerns
about the impartiality of Juror 152 and that there had been a
“heated” conflict between Juror 152 and the foreman in the jury
room. After bringing the jurors into the courtroom and conferring
with the foreman about their progress, the court dismissed the jury
7 The trial court heard testimony that Juror 152 had attempted to discuss
the evidence in the case with his wife and with the sheriff’s deputy who was
chaperoning the jury and that Juror 152 had contacted a detective from
another state for advice about how to assess the statements Heinze made to
police. Juror 152 testified, however, that he had not expressed any opinion
about the case to the other jurors, denied receiving any information in regard
to police investigations, and assured the court that he would decide the case
based on the evidence presented. Juror 152 later informed the court that his
daughter had been present in the courtroom and that Heinze’s brother had
moved to sit with her. Juror 152 indicated that he was concerned for his
daughter’s safety. The court informed Juror 152 that the issue had been “taken
care of.”
11
for the evening.
The next morning, the trial court was notified that the parties
had reached an agreement. The State announced to the court that it
agreed to withdraw its notice of intent to seek the death penalty
against Heinze and seek a maximum sentence of life or life without
parole on any of the counts for which Heinze might be found guilty.
In return, Heinze agreed that Juror 152 would be excused from the
jury and replaced by the first alternate juror. The parties agreed
that the jurors would be brought back to the courtroom and
instructed that a juror had been removed and replaced by the first
alternate, and that they were to restart their deliberations as to each
count in the indictment. The parties also agreed that the jury would
not be informed that the death penalty was no longer available as a
possible sentence.
The trial court asked Heinze’s three attorneys individually if
the State had accurately presented the terms of the mutually
agreed-upon deal. They each agreed that the State’s representations
were accurate. The trial court then asked Heinze about the
12
agreement:
COURT: Mr. Heinze, have you had an opportunity to
speak with your team about the agreement?
HEINZE: Yes, Your Honor.
COURT: And do you need some more time with them or
are you ready for me to ask you whether or not that’s your
agreement?
HEINZE: I’m fine.
COURT: Okay. So, you’re okay. All right. And you agree
with it? Do you have any questions about it?
HEINZE: No.
COURT: All right.
The trial court then accepted and enforced the agreement of
the parties by removing Juror 152, substituting the first alternate
juror onto the jury, and instructing the jury to restart its
deliberations. The jury returned a unanimous guilty verdict on each
count of the indictment later that afternoon.
At the hearing on Heinze’s motion for new trial, Heinze’s lead
trial counsel testified that the defense team participated in
negotiations to remove Juror 152 and that Heinze was consulted and
advised before the attorneys agreed to anything with the State.
Counsel testified that he and the other attorneys had “several hours”
to talk with Heinze before agreeing to the deal with the State.
13
Heinze now argues that, by accepting the parties’ agreement,
the trial court violated OCGA § 15-12-1728 because it did not have
the authority under that Code section to remove Juror 152. Heinze
also argues that the removal of Juror 152 deprived him of his right
to a fair and impartial jury and deprived Juror 152 of his right to
serve as a juror. He also claims that the trial court’s questioning of
Heinze about the agreement was inadequate to determine whether
Heinze knowingly and intelligently waived his right to have Juror
152 on the jury.
However, as Heinze conceded at oral argument, by agreeing to
the removal of Juror 152 in exchange for the State’s agreement to
withdraw its notice of intent to seek the death penalty against him,
8 OCGA § 15-12-172 provides, in relevant part:
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. . . . An alternate
juror taking the place of any incapacitated juror shall thereafter
be deemed to be a member of the jury of 12 and shall have full
power to take part in the deliberations of the jury and the finding
of the verdict. Any verdict found by any jury having thereon
alternate jurors shall have the same force, effect, and validity as if
found by the original jury of 12.
14
Heinze invited the trial court’s actions and therefore affirmatively
waived any claim of error regarding the removal of Juror 152. See
Wallace v. State, 303 Ga. 34, 37 (2) (
810 SE2d 93) (2018) (appellant
invited alleged error by urging the trial court to dismiss a holdout
juror). The record clearly shows that Heinze consulted with his
attorneys before entering into this agreement. Moreover, the trial
court questioned Heinze as to his knowledge and understanding of
the agreement and whether he had consulted with his attorneys
about the agreement, and the trial court gave Heinze an opportunity
to ask questions about the agreement. Heinze has pointed to no
authority suggesting that the trial court was even required to make
these inquiries of Heinze personally in order to remove Juror 152
pursuant to the mutual agreement of the attorneys for the parties.
See, e.g.,
id. (holding that the appellant affirmatively waived a
challenge to the replacement of a juror with an alternate because his
trial counsel urged the trial court to dismiss the juror, without any
colloquy with the appellant personally). Moreover, Heinze has not
asserted or presented any evidence as to anything relating to the
15
agreement that he did not know about or understand at the time he
entered into it. This enumeration of error fails.
Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Peterson, Ellington, and McMillian, JJ., concur. Warren, J., not
participating.
DECIDED DECEMBER 7, 2020.
Murder. Glynn Superior Court. Before Judge Scarlett.
Richard O. Allen, for appellant.
Jacquelyn L. Johnson, District Attorney, Thomas E. Buscemi,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Mark S. Lindemann,
Assistant Attorney General, for appellee.
16
