FIRST DIVISION BARNES, P. J., LAND and WATKINS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
September 26, 2023
In the Court of Appeals of Georgia A23A1078. SIMMONS v. THE STATE.
LAND, Judge.
After a jury trial, Reginald Simmons was convicted of multiple counts of armed
robbery, false imprisonment, aggravated assault, possession of a firearm during the
commission of a crime as well as one count each of burglary in the first degree and
cruelty to children in the third degree arising out of a home invasion.1 Simmons
appeals from the denial of his motion for new trial. He argues that the trial court erred
by denying his motion for a mistrial because the continuing witness rule was violated
when the State’s timeline and work product inadvertently went back with the jury
during jury deliberations for approximately an hour and a half. For the following
reasons, we affirm.
1 Simmons was found not guilty of one count of terroristic threats. “On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)
(2004). We neither weigh the evidence nor judge the credibility of witnesses, but
determine only whether, after viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 LEd2d 560) (1979).
So viewed, the facts show that at about 3:00 p.m. on November 19, 2013, the
victim was home with her brother, her boyfriend, her friend and the friend’s seven
month old baby when she heard the doorbell ring. When the victim answered the
door, two men with guns forced themselves inside. The victim recognized the men
as Simmons and as someone known as “Jaybo.” Once inside, the intruders forced
everyone at gunpoint to go upstairs to a bedroom. The two men then took turns
ransacking the home and holding the five victims at gunpoint in the bedroom while
threatening to shoot them. At one point, one of the men threatened to shoot the baby
if the mother did not cooperate. After stealing various electronic and personal items
2 from the home and the victims, Simmons and Jaybo fled. The victims then called 911
and provided statements.
Later that evening, an investigating detective received an anonymous phone
call, which came up as “Foster, K” on the caller ID. The caller identified herself as
Simmons’ mother, and she told the detective that Simmons had called her to say that
he was the victim of a home invasion and needed help getting out of town. Simmons’
mother then told the detective that she did not believe Simmons and felt like he was
trying to get money out of her. Three days later, Simmons’ mother called the police
again and told them that her son had been involved in an armed robbery. She agreed
to give a formal statement to the police, but never showed up. Simmons’ mother was
called as a witness at trial and was eventually declared hostile and impeached when
she testified that she did not remember speaking with detectives. Based on the
information provided by Simmons’ mother, the detective created a six-person
photographic lineup. The victim identified Simmons as one of the individuals who
committed the robbery from this photographic lineup.
After the close of evidence and closing arguments, the trial court charged the
jury and then sent them to lunch. The jury began deliberating at 2:15 p.m. About two
hours later, the trial court was informed by the courtroom deputy that the jury
3 submitted a question asking if a written timeline was supposed to have been sent back
with them to the jury room during deliberations. Defense counsel and the State
consulted with the trial court outside the presence of the jury. They informed the trial
court that the timeline was the State’s work product and had inadvertently been made
part of the evidence that went back with the jury. The jury foreperson was called into
the room and testified that the members of the jury had read and considered the
timeline when in the deliberation room. After reviewing the timeline, defense counsel
then informed the trial court that the only information contained in it that was not
cumulative of evidence properly admitted at trial was: (1) a notation that on
November 19 at 2:22 p.m., “Mimi English flags down Officer Shelton at Sunset
Lodge” and (2) a notation that on November 26, 2013 at 5:00 p.m., “[Detective]
Cantrell attempted to contact Foster . . . to reschedule her interview, leaves message.”
The trial court noted that the State had, in fact, introduced evidence that the detective
called Foster to reschedule and that the statement that Mimi English flagged down an
officer was not harmful to the defense. The State sought a limiting instruction
directing the jurors not to consider the timeline as part of their deliberations.
Simmons moved for a mistrial, alleging a violation of the continuing witness rule.
The trial court denied the motion for a mistrial. The trial court then issued a limiting
4 instruction to the jury which instructed them that the timeline was not evidence, it was
the State’s work product, and it was not to be considered during their deliberations.
Simmons then renewed his motion for mistrial, which the trial court denied.
The denial of a motion for mistrial lies within the sound discretion of the trial
court, which will not be disturbed on appeal absent manifest abuse of discretion.
Davis v. State, 285 Ga. 343, 345 (4) (676 SE2d 214) (2009). See also Gaines v. State,
339 Ga. App. 527, 529 (2) (792 SE2d 466) (2016) (the 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”) (footnote omitted)).
The continuing witness rule prohibits testimonial writings, such as written
interrogatories and signed statements of guilt, “from going out with the jury when the
evidentiary value of such writings depends upon the credibility of the maker” and
contain “their makers’ assertions of purported truths[.]” (Footnotes omitted.) Bryant
v. State, 270 Ga. 266, 270-271 (3) (507 SE2d 451) (1998). Here, the State’s timeline
was not admitted at trial as documentary or demonstrative evidence and was not
created by a witness and thuswas not subject to the continuing witness rule. See e. g.
Moore v. State, 311 Ga. 506, 511-512 (4) (858 SE2d 676) (2021) (a State-created
powerpoint presentation that summarized the admitted cell phone evidence was not
5 subject to the continuing witness rule); McKenzie v. State, 300 Ga. App. 469, 473 (3)
(685 SE2d 333) (2009) (continuing witness rule did not apply to a timeline of the
defendants’ cell phone activity created by an investigator for the district attorney’s
office). See also Dockery v. State, 308 Ga. App. 502, 506-507 (4) (707 SE2d 889)
(2011) (finding a continuing witness violation harmless where the erroneously
admitted evidence was cumulative of evidence that had already been properly
admitted).
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FIRST DIVISION BARNES, P. J., LAND and WATKINS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
September 26, 2023
In the Court of Appeals of Georgia A23A1078. SIMMONS v. THE STATE.
LAND, Judge.
After a jury trial, Reginald Simmons was convicted of multiple counts of armed
robbery, false imprisonment, aggravated assault, possession of a firearm during the
commission of a crime as well as one count each of burglary in the first degree and
cruelty to children in the third degree arising out of a home invasion.1 Simmons
appeals from the denial of his motion for new trial. He argues that the trial court erred
by denying his motion for a mistrial because the continuing witness rule was violated
when the State’s timeline and work product inadvertently went back with the jury
during jury deliberations for approximately an hour and a half. For the following
reasons, we affirm.
1 Simmons was found not guilty of one count of terroristic threats. “On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)
(2004). We neither weigh the evidence nor judge the credibility of witnesses, but
determine only whether, after viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 LEd2d 560) (1979).
So viewed, the facts show that at about 3:00 p.m. on November 19, 2013, the
victim was home with her brother, her boyfriend, her friend and the friend’s seven
month old baby when she heard the doorbell ring. When the victim answered the
door, two men with guns forced themselves inside. The victim recognized the men
as Simmons and as someone known as “Jaybo.” Once inside, the intruders forced
everyone at gunpoint to go upstairs to a bedroom. The two men then took turns
ransacking the home and holding the five victims at gunpoint in the bedroom while
threatening to shoot them. At one point, one of the men threatened to shoot the baby
if the mother did not cooperate. After stealing various electronic and personal items
2 from the home and the victims, Simmons and Jaybo fled. The victims then called 911
and provided statements.
Later that evening, an investigating detective received an anonymous phone
call, which came up as “Foster, K” on the caller ID. The caller identified herself as
Simmons’ mother, and she told the detective that Simmons had called her to say that
he was the victim of a home invasion and needed help getting out of town. Simmons’
mother then told the detective that she did not believe Simmons and felt like he was
trying to get money out of her. Three days later, Simmons’ mother called the police
again and told them that her son had been involved in an armed robbery. She agreed
to give a formal statement to the police, but never showed up. Simmons’ mother was
called as a witness at trial and was eventually declared hostile and impeached when
she testified that she did not remember speaking with detectives. Based on the
information provided by Simmons’ mother, the detective created a six-person
photographic lineup. The victim identified Simmons as one of the individuals who
committed the robbery from this photographic lineup.
After the close of evidence and closing arguments, the trial court charged the
jury and then sent them to lunch. The jury began deliberating at 2:15 p.m. About two
hours later, the trial court was informed by the courtroom deputy that the jury
3 submitted a question asking if a written timeline was supposed to have been sent back
with them to the jury room during deliberations. Defense counsel and the State
consulted with the trial court outside the presence of the jury. They informed the trial
court that the timeline was the State’s work product and had inadvertently been made
part of the evidence that went back with the jury. The jury foreperson was called into
the room and testified that the members of the jury had read and considered the
timeline when in the deliberation room. After reviewing the timeline, defense counsel
then informed the trial court that the only information contained in it that was not
cumulative of evidence properly admitted at trial was: (1) a notation that on
November 19 at 2:22 p.m., “Mimi English flags down Officer Shelton at Sunset
Lodge” and (2) a notation that on November 26, 2013 at 5:00 p.m., “[Detective]
Cantrell attempted to contact Foster . . . to reschedule her interview, leaves message.”
The trial court noted that the State had, in fact, introduced evidence that the detective
called Foster to reschedule and that the statement that Mimi English flagged down an
officer was not harmful to the defense. The State sought a limiting instruction
directing the jurors not to consider the timeline as part of their deliberations.
Simmons moved for a mistrial, alleging a violation of the continuing witness rule.
The trial court denied the motion for a mistrial. The trial court then issued a limiting
4 instruction to the jury which instructed them that the timeline was not evidence, it was
the State’s work product, and it was not to be considered during their deliberations.
Simmons then renewed his motion for mistrial, which the trial court denied.
The denial of a motion for mistrial lies within the sound discretion of the trial
court, which will not be disturbed on appeal absent manifest abuse of discretion.
Davis v. State, 285 Ga. 343, 345 (4) (676 SE2d 214) (2009). See also Gaines v. State,
339 Ga. App. 527, 529 (2) (792 SE2d 466) (2016) (the 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”) (footnote omitted)).
The continuing witness rule prohibits testimonial writings, such as written
interrogatories and signed statements of guilt, “from going out with the jury when the
evidentiary value of such writings depends upon the credibility of the maker” and
contain “their makers’ assertions of purported truths[.]” (Footnotes omitted.) Bryant
v. State, 270 Ga. 266, 270-271 (3) (507 SE2d 451) (1998). Here, the State’s timeline
was not admitted at trial as documentary or demonstrative evidence and was not
created by a witness and thuswas not subject to the continuing witness rule. See e. g.
Moore v. State, 311 Ga. 506, 511-512 (4) (858 SE2d 676) (2021) (a State-created
powerpoint presentation that summarized the admitted cell phone evidence was not
5 subject to the continuing witness rule); McKenzie v. State, 300 Ga. App. 469, 473 (3)
(685 SE2d 333) (2009) (continuing witness rule did not apply to a timeline of the
defendants’ cell phone activity created by an investigator for the district attorney’s
office). See also Dockery v. State, 308 Ga. App. 502, 506-507 (4) (707 SE2d 889)
(2011) (finding a continuing witness violation harmless where the erroneously
admitted evidence was cumulative of evidence that had already been properly
admitted).
Even if we construe Simmons’ motion as arguing that the jury was improperly
given extra-judicial information during their deliberations, we find that the trial court
did not err by denying the motion. When a juror is exposed to information from
outside the trial which is brought into the jury room, such information is “extra-
judicial information” that can “violate a defendant’s [Constitutional] right to confront
and cross-examine witnesses against him.” (Citation and punctuation omitted.)
Ballinger v. Watkins, 315 Ga. 369, 376 (2) (a) (882 SE2d 312) (2022). A claim that
a defendant was so harmed by his exposure to extra-judicial information “ultimately
turns on whether the defendant was prejudiced” by such exposure. Id. at 377 (2) (b).
Here, the only evidence in the State’s timeline that had not been introduced through
other means at trial was that a woman named Mimi English flagged down an officer
6 just after the armed robbery occurred. In light of the trial court’s curative instructions
and the fact any extra-judicial information on the timeline that was not merely
cumulative of other evidence was of a non-prejudicial nature, especially in light of
the other evidence properly admitted at trial, we find no abuse of discretion in the trial
court’s denial of Simmons’ motion for mistrial. See Burney v. State, 309 Ga. 273,
293-294 (5) (845 SE2d 625) (2020) (new trial was not warranted when juror obtained
extra-judicial information when she researched the definitions of “malice” and
“malice murder” online because the trial court recharged the jury as to the meaning
of “malice murder” upon their request and the trial court found no evidence that any
of the jurors relied upon the information obtained in the juror’s online search); Royal
v. State, 217 Ga. App. 459, 460 (3) (458 SE2d 366) (1995) (affirming denial of
motion for mistrial when a juror showed other jurors her own personal map showing
the location of the road where the victim lived when trial court instructed the jurors
to disregard information they received from observing the map). See also Jones v.
State, 305 Ga. 750, 755 (3) (827 SE2d 879) (2019) (holding that juries are presumed
to follow curative instructions in the absence of proof to the contrary).
Judgment affirmed. Barnes, P. J., and Watkins, J., concur.
7 8