302 Ga. 691 FINAL COPY
S17A1475. DIXON v. THE STATE. S17A1476. CAMPS v. THE STATE.
BLACKWELL, Justice.
Bernard Dixon and Arrick Camps were tried by a Bartow County jury and
found guilty of malice murder and other crimes in connection with the shooting
death of Robert Carr.1 They appeal, both contending that the trial court erred
when it refused to declare a mistrial for prosecutorial misconduct in the cross-
1 The crimes were committed on April 7, 2015. On October 21, 2015, a Bartow County grand jury indicted Dixon and Camps (along with three others) for malice murder (Count 1), felony murder (Counts 2-5), kidnapping with bodily injury (Count 6), armed robbery (Count 7), aggravated assault (Counts 8-11), conspiracy to commit robbery (Count 12), false imprisonment (Count 13), and possession of a firearm during the commission of a felony (Counts 14-17). After their first trial ended in a hung jury, Dixon and Camps were retried jointly from March 28 through April 4, 2016. The trial court granted a directed verdict to both Dixon and Camps on Count 2 (felony murder), Count 6 (kidnapping with bodily injury), Count 13 (false imprisonment), and Count 15 (possession of a firearm during the commission of a felony). The jury found each defendant guilty on all other counts. After merging several counts for sentencing purposes, the trial court sentenced both Dixon and Camps to imprisonment for life plus five years. Dixon filed his motion for new trial on May 31, 2016, and his amended motion on November 22, 2016. Camps filed his motion for new trial on June 24, 2016, and he amended the motion on November 9, 2016. The trial court held a hearing and denied both defendants’ motions in a combined order dated December 7, 2016. Dixon and Camps timely filed their notices of appeal on December 27 and 29, 2016, respectively. Their cases were docketed in this Court for the August 2017 term and submitted for a decision on the briefs. examination of a defense witness. They also argue, each for different reasons,
that the trial court erred when it refused to grant them new trials based on jury
misconduct. We affirm.
1. Viewed in the light most favorable to the jury’s verdict, the evidence
at trial shows that Dixon, Camps, and three others — Elizabeth Kelley,
Stephanie Gardner, and Rebecca Dover — made plans to rob Carr. The plan
originated with Dover; she told Gardner about the opportunity, and Gardner
invited Dixon and Kelley to participate. Some time later, Camps also joined the
scheme. The robbery was to occur in Cartersville, and so, in the early morning
hours of April 7, 2015, Kelley drove Dixon and Gardner from Marietta to a
Chevron gas station in Cartersville. There, they met up with Dover and Carr.
Dover was highly intoxicated and seemed to have lost interest in the robbery;
she instead expressed a desire to play “ding-dings,” which apparently are
gaming devices similar to slot machines. The group then drove Dover (but not
Carr) to a Sunoco gas station down the road to play ding-dings. Dover and
Gardner stayed at the Sunoco, and Dixon and Kelley then picked up Camps
from his house not far away. When they returned to the Sunoco, Gardner got in
the car with Kelley, Dixon, and Camps, and the four drove back to the Chevron
2 to look for Carr with the intent to rob him (Dover had remained at the Sunoco).
They did not find Carr at the station but got in touch with him via a cell phone
and arranged to meet him outside a nearby hotel.
When the group arrived at the hotel, Gardner invited Carr into the vehicle,
ostensibly to take him to rejoin Dover back at the Sunoco, and he sat in the back
seat next to Gardner and Camps. But instead of going to the Sunoco, Dixon
(who was in the front passenger seat) directed Kelley to drive to a secluded area
with what looked like an abandoned warehouse. Dixon then pointed a gun at
Carr and told him to get out. Carr obeyed, and Dixon followed him out. After
a verbal exchange, Dixon shot Carr in the leg. Dixon then jumped back in the
car, and the group drove off. Before going very far, however, Dixon said he
forgot to check Carr’s pockets, and then either Dixon or Camps said that they
could not simply leave Carr lying there but had to go back and “finish him,” as
he could identify them. Kelley drove back to where Carr was shot, and she saw
him walking and talking on the phone, saying “they shot me, they shot me.”
Camps grabbed the gun and jumped out of the car. Kelley heard gunshots and
then saw Camps standing over Carr, with his arm angled toward the victim.
Dixon then urged Camps to get back in the car, and the group drove off
3 hurriedly and went back to Marietta. During the course of the robbery, the group
took Carr’s backpack, but it was found to contain little of value. Carr’s body
was discovered later that morning. An autopsy revealed that he died of multiple
gunshot wounds to the face, chest, and extremities.
Dixon and Camps do not dispute that the evidence is sufficient to sustain
their convictions. Nevertheless, as is our customary practice in murder cases, we
independently have reviewed the record with an eye toward the legal sufficiency
of the evidence. We conclude that the evidence presented at trial is sufficient to
authorize a rational trier of fact to find beyond a reasonable doubt that Dixon
and Camps are guilty of the crimes of which they were convicted. See Jackson
v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Both Dixon and Camps argue that the trial court erred when it refused
to declare a mistrial for prosecutorial misconduct. On the fifth day of trial,
Camps called a witness who was a close friend of Carr. On cross-examination,
the prosecuting attorney asked the witness why he was upset. When the witness
replied that he was upset at the death of his “best friend” Carr, the prosecutor
asked: “Now, this is a murder trial. Did you see [Dixon and Camps] talking and
laughing a while ago?” The witness replied, “Yes I did.” The alleged “talking
4 and laughing” referenced by the prosecutor occurred during a break in trial,
outside the jury’s presence. The defendants contend that this question by the
prosecutor was irrelevant, prejudicial, and impermissibly placed the defendants’
character at issue.
We generally review a trial court’s denial of a motion for mistrial for
abuse of discretion. Rivers v. State, 296 Ga. 396, 402 (6) (768 SE2d 486)
(2015); McKibbins v. State, 293 Ga. 843, 848 (3) (750 SE2d 314) (2013).
“[T]he denial of a mistrial is reversible error only if it appears that a mistrial was
essential to preserve the defendant’s right to a fair trial.” McKibbins, 293 Ga.
at 848 (3) (citation and punctuation omitted). Moreover, with regard to
prosecutorial misconduct, OCGA § 17-8-75 provides:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
In this case, pretermitting whether the prosecutor’s question was, in fact,
improper, the trial court fully complied with OCGA § 17-8-75 and did not abuse
its discretion in refusing to grant a mistrial. The defense objected immediately
5 after the cross-examination in question, at which point the trial court held a
bench conference outside the jury’s presence and rebuked the prosecutor, telling
him that the question was “totally inappropriate” and “it’s not going to happen
in this courtroom.” The court then brought the jury back, told them that the
prosecution had been admonished, and instructed them “to disregard the
question or any response that was elicited as a result of that question.”
“We ordinarily presume that a jury follows such instructions.” Coleman
v. State, 301 Ga. 720, 722 (3) (804 SE2d 24) (2017). Nothing in this case
undercuts that presumption. To the contrary, the trial court specifically asked the
jurors to “indicate by raising your hand if you feel that you would be unable to
disregard the previous question and response elicited by the State,” and none of
the jurors raised their hand. In light of the foregoing, a mistrial was not
necessary to preserve the defendants’ right to a fair trial. See McKibbins, 293
Ga. at 850 (3) (c) (trial court did not abuse its discretion when it denied a
mistrial after improper statement by prosecutor, “especially because the trial
court promptly admonished the prosecuting attorney and told the jury to
disregard the statement”).
6 3. Both Dixon and Camps ask for a new trial due to juror misconduct. The
record reflects the following issues with the jury. On the morning of the fourth
day of trial, four jurors came before the court for questioning. Two of the jurors,
R. M. and A. H., had expressed concern about a suspicious individual who was
observed in the parking lot writing down jurors’ license plate numbers. Camps
had raised concerns about two other jurors, juror A. S. and alternate juror S. S.,
who had been seen talking during the trial. A. S. and S. S. were questioned
separately to determine whether they had overheard anything about the
suspicious activity and whether the jurors discussed the case among themselves.
When A. S. was asked whether there had been “any discussion amongst the
jurors about this case, about what’s going on,” she replied in the negative, and
both defendants said they had no further questions of her. Juror S. S. also denied
talking to A. S. (who had sat next to her) about the case, but admitted
commenting that Camps’s attorney was “monotonous.” S. S. insisted that this
was the only comment she made, even when both defense counsel pointed out
that they had observed as much as 20 seconds of conversation between her and
A. S. during trial.
7 After a bench conference, both defendants moved for a mistrial and,
alternatively, for S. S.’s removal. Dixon moved for the removal of juror A. S.
as well. The trial court refused to grant a mistrial, but did remove juror S. S.
without objection from the State on the ground that she arrived late for court,
slept during trial, and audibly conversed with A. S. But the trial court refused
to remove A. S., explaining:
I did observe communication between those two jurors. Now, I don’t know what the communication was. I don’t know if the communication was [A. S.] telling [S. S.], you know, please be quiet, you’re talking too loud. I don’t know what the communication was. But when asked this morning, [A. S.] said here that she didn’t have any conversation about the case. So I’ll just reemphasize that with the jurors again. That’s all I can do.
When the jury was brought back in, the trial court instructed the jurors, among
other things, not to talk to each other or with anyone else about the case until
they retired for deliberations.
(a) On appeal, Dixon argues that the trial court should have granted a
mistrial, or alternatively removed juror A. S., based on the audible conversation
between her and S. S. We disagree. “To set aside a jury verdict solely because
of irregular jury conduct, this Court must conclude that the conduct was so
prejudicial that the verdict is inherently lacking in due process.” Butler v. State,
8 270 Ga. 441, 444 (2) (511 SE2d 180) (1999); Sims v. State, 266 Ga. 417, 419
(3) (467 SE2d 574) (1996) (“Our inquiry . . . must be directed to whether this
[jury irregularity] is so inherently prejudicial as to require a new trial, or
whether it is an immaterial irregularity without opportunity for injury.”). Here,
the trial court gave Dixon the opportunity to question jurors A. S. and S. S., and
both denied any discussion about the case. And there is no evidence that the
jurors actually discussed any impermissible topics. To be sure, as Dixon points
out, “[w]hen irregular juror conduct is shown, there is a presumption of
prejudice to the defendant, and the prosecution carries the burden of establishing
beyond a reasonable doubt that no harm occurred.” Holcomb v. State, 268 Ga.
100, 103 (2) (485 SE2d 192) (1997). But as we have explained,
the type of irregularity that gives rise to such a presumption of prejudice involves juror misconduct that has the potential to injure a defendant’s due process rights, e.g., making an unauthorized visit to the crime scene and then presenting the findings to the jury panel; privately discussing the defendant’s guilt prior to deliberations in violation of the court’s instructions; or improperly accessing outside news sources.
Jones v. State, 282 Ga. 47, 50 (3) (644 SE2d 853) (2007) (citations and
punctuation omitted). As mentioned above, there is simply no evidence that the
conversation at issue between jurors A. S. and S. S. concerned Dixon’s guilt or
9 other impermissible subjects. In any event, after this conversation came to light,
juror S. S. was dismissed and the trial court reminded the jurors that they were
not to discuss this case with anyone, including each other. Thus, “[w]e are
satisfied that [A. S.’s and S. S.’s] actions were harmless beyond a reasonable
doubt.” Sims, 266 Ga. at 420 (3).
(b) Camps contends that his Sixth Amendment right to an impartial jury
was violated by cumulative instances of irregular juror conduct, although he
concedes that no particular incident alone would require reversal. Specifically,
Camps points out that (1) two jurors expressed concern about being stalked and
communicated this concern to other jurors; (2) alternate juror S. S. was
questioned about inappropriate activity and then dismissed; and (3) juror A. S.
sent a “strongly worded” note to the trial court upon her election as foreperson.2
Camps also notes that juror A. S. was arrested for possession of hashish oil
about two weeks after the trial.
2 The note was sent on Friday, April 1, 2016, after the presentation of evidence and before jury deliberations began. The note was titled “Jury Requests,” and it asked for an easel or white board, written and audio statements from defendants, and cell phone maps. The note also stated that the “Jury will dismiss at 5pm, 4/1/16 and Jury will resume 9am, 4/4.”
10 As with the conversation between the two jurors, while the above
incidents may have been unusual, they do not warrant a reversal. Concerning
suspicious activity, the trial court assured the jurors that “we do everything,
everything, to make sure that we’re all safe and comfortable while we’re here
at this courthouse” and that “nothing that has happened in any way has been an
indication to me or to any of the officials here that there has been a breach of
security in any way.” The record does not indicate that this instruction failed to
alleviate the jurors’ concerns or that their worries impacted their ability to listen
to the evidence or decide the case. With regard to the note sent by juror A. S.,
while it might have been more deferential, it does not suggest to us that juror A.
S. or any other jurors failed to take their duties seriously. As to A. S.’s post-trial
arrest, she testified at the motion for new trial hearing that she consumed no
illegal substances during trial, and the record does not suggest otherwise.
Finally, concerning juror S. S., she was an alternate who was dismissed prior to
deliberations, and nothing indicates that her behavior materially impacted other
jurors. Simply put, the record contains no evidence that the above irregularities,
even taken together, undermined the fairness of the trial or infringed Camps’s
right to due process. See Butler, 270 Ga. at 444 (2).
11 4. The jury found Dixon and Camps guilty of malice murder and armed
robbery, among other crimes. At sentencing, the trial court merged the armed
robbery into the murder and did not sentence Dixon and Camps for the armed
robbery. That was error. See Culpepper v. State, 289 Ga. 736, 739 (2) (b) (715
SE2d 155) (2011). The State, however, does not raise this error by cross-appeal.
Even when no party raises a merger error, if we note such an error, we
have the discretion to correct it on direct appeal. See Nazario v. State, 293 Ga.
480, 486-487 (2) (b) (746 SE2d 109) (2013). We have no obligation “to scour
the record searching for merger issues” that no party has raised, and when a
party fails to raise a merger error, “he risks that the court too may overlook the
issue.” Id. at 488 (2) (d). But sometimes a merger error is so clear and obvious
that it comes to our attention even without the help of any party, and in those
instances, we have the discretion to correct the error upon our own initiative.
Most commonly, we have exercised that discretion in cases in which the error
harms the defendant — cases in which the trial court erroneously convicted and
sentenced a defendant for a crime that ought to have been merged, resulting in
a conviction and sentence that were not legally authorized. See id. at 486-487
(2) (b); see also Donaldson v. State, 302 Ga. 671, 674 (4) (808 SE2d 720)
12 (2017). Three years ago, however, we recognized in Hulett v. State, 296 Ga. 49,
54 (2) (766 SE2d 1) (2014), that our discretion to correct merger errors that no
party has raised is not limited to cases in which the error is harmful to a
defendant. Since Hulett, we have exercised this discretion in a number of cases
to vacate the erroneous merger of crimes for which defendants should have been
sentenced, and we have remanded those cases for trial courts to sentence the
defendants for the improperly merged crimes. See, e.g., Brannon v. State, 298
Ga. 601, 603 (2) (783 SE2d 642) (2016); Jones v. State, 299 Ga. 377, 381 (2)
(788 SE2d 477) (2016).
We have the discretion to correct merger errors sua sponte — regardless
of who is harmed by the error and who benefits from its correction — because
a merger error results in an illegal and void judgment of conviction and
sentence. See Hulett, 296 Ga. at 53-54 (2). There are powerful reasons to
exercise that discretion when a merger error leads to an unauthorized conviction
and sentence, particularly when it may cause the defendant to serve a total
sentence that is longer than the law allows. A deprivation of liberty for even a
moment more than the law permits is a serious wrong of constitutional
magnitude:
13 Where a case challenging criminal convictions is properly brought before a court and the court realizes, on its own or based on the defendant’s argument, that the record shows that certain convictions merged, to disregard that determination and allow the defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law.
Nazario, 293 Ga. at 487 (2) (c). Moreover, the illegality of a void sentence
cannot be waived, see id. at 485-486 (2) (b), and a merger error may form the
grounds for habeas relief long after the judgment of conviction has become
final. See id. at 488 (2) (d). For this reason, an exercise of our discretion on
direct appeal to correct a merger error that harms a defendant (but of which he
has not complained) may avoid unnecessary habeas proceedings and thereby
promotes judicial economy.
But when a merger error benefits a defendant — resulting in a lesser
sentence than the law required — and the State does not raise the error, it is not
so clear that we ought to routinely exercise our discretion to correct the error.
Such an error implicates no liberty interest. It poses no danger of unnecessary
habeas proceedings, and judicial economy is not advanced by its correction.
(Indeed, our correction of such an error only prolongs the judicial proceedings,
inasmuch as it inevitably requires a remand for further sentencing.) And an
14 exercise of our discretion to correct such an error effectively penalizes the
defendant for having brought his case before us. Although a defendant “who has
been convicted of a crime has neither a vested right to nor a reasonable
expectation of finality as to a pronounced sentence which is null and void,”
Hulett, 296 Ga. at 54 (2) (citation and punctuation omitted), we nonetheless
perceive some unfairness in a practice that effectively penalizes defendants for
exercising their right to seek appellate review of their convictions and sentences.
For these reasons, we have determined that, when a merger error benefits a
defendant and the State fails to raise it by cross-appeal, we henceforth will
exercise our discretion to correct the error upon our own initiative only in
exceptional circumstances.3 Seeing no such exceptional circumstances here, we
decline to exercise our discretion to correct the erroneous merger of the armed
robbery, and we affirm the judgment below.
Judgment affirmed. All the Justices concur.
3 As in this case, the State ordinarily is represented by competent counsel, and if the correction of a merger error were important to promote the law enforcement and correctional interests of the State, we would expect the prosecuting attorneys to properly bring the error to our attention by cross-appeal.
15 Decided December 11, 2017.
Murder. Bartow Superior Court. Before Judge Suzanne Smith.
John W. Howe, for appellant (case no. S17A1475).
Daniel D. Morgan, for appellant (case no. S17A1476).
Rosemary M. Greene, District Attorney, Sharon M. Fox, Andrew D.
Garland, Assistant District Attorneys; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Matthew B. Crowder, Aimee F. Sobhani, Assistant
Attorneys General, for appellee.