FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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. http://www.gaappeals.us/rules
March 13, 2020
In the Court of Appeals of Georgia A19A2105. MURPHY v. THE STATE.
MCFADDEN, Chief Judge.
After cashing a counterfeit check at a bank, Samuel Earl Murphy was indicted
for third-degree forgery (OCGA § 16-9-1 (d)) and theft by taking (OCGA § 16-8-2).
On the day he was scheduled to go to trial he fled from the courthouse, and he
subsequently pled guilty to and was convicted of bail jumping (OCGA § 16-10-51
(a)). At Murphy’s later trial on the forgery and theft offenses, his trial counsel did not
object when the state presented evidence of his bail-jumping conviction. His trial
counsel also did not object when, upon receipt of a question from the jury during
deliberations, the trial court paraphrased it for counsel and did not share its disclosure
of an eleven-to-one split in favor of conviction. The jury found Murphy guilty on both counts. On appeal, Murphy argues that
the trial court erred in withholding from counsel the jury’s disclosure of their eleven-
to-one split. But he has not shown that this was plain error. He also argues that his
trial counsel’s failure to object to the trial court’s handling of the jury note and his
failure to object to the admission of evidence of his bail-jumping conviction
constituted ineffective assistance of counsel. But he has not shown both deficient
performance and prejudice. So we affirm.
1. Facts.
Viewed in the light most favorable to the verdict, the trial evidence showed that
on May 17, 2016, Murphy cashed a check for $1545.65 at a branch of the Wells
Fargo bank. The check, which was made out to Murphy, purported to be written on
the account of a business located in Alabama. But Murphy had no connection with
the business, and the business had not written the check to Murphy or authorized it
to be cashed. Instead, it was a counterfeit check, fabricated with the business’s
account and routing numbers. Ultimately the bank reimbursed the business and bore
the loss for the check.
2. Jury note.
2 During its deliberations, the jury sent the trial court a note that stated: “11-1
guilty on both counts. At an impasse. Suggestions[?]” The trial court informed
counsel and Murphy of the note and paraphrased its contents, telling them:
I have received a note from the jury, and the information that is on the note sends me the very clear message that they are not in agreement on a verdict at this point in time, and they feel like even though they’ve been deliberating a whole hour that they’re not going to be able to make any progress, and so they have asked for suggestions. They’ve also disclosed some other information in this note that I’m making the decision that I’m not going to share with the lawyers or Mr. Murphy at this point in time. I will make this note a record later in — part of the record later in this case, but right now I’m not going to.
The trial court and counsel discussed the trial court’s intended response. After
receiving counsel’s input, the trial court then instructed the jury as follows:
Ladies and gentlemen, I have received your note. The court has reviewed it. Just me. I’m the only one who has reviewed it at this point in time, and I understand that you guys are having some difficulty coming to an agreement. However, I would like to encourage you to continue your deliberations. It is your duty to deliberate, so I would ask you to go back and continue your deliberations. Thank you very much.
3 Murphy argues that the trial court violated his right to counsel by failing to
“divulge in full” the note’s contents, specifically the eleven-to-one vote split. He did
not make this objection to the trial court below but argues that the trial court’s actions
constituted plain error. Assuming without deciding that plain-error review applies to
this type of challenge, Murphy “must demonstrate that the . . . error was not
affirmatively waived, was obvious beyond reasonable dispute, likely affected the
outcome of the proceedings, and seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Hood v. State, 303 Ga. 420, 425 (2) (a) (811
SE2d 392) (2018). He has not done so, because he has not shown that this claimed
error was obvious beyond reasonable dispute.
It is true that “the failure of the trial court to inform counsel of the contents of
a jury note and to seek comment or input in the formulation of the court’s response
constitutes a violation of a defendant’s right to counsel.” Dowda v. State, 341 Ga.
App. 295, 299 (3) (799 SE2d 807) (2017) (citations and punctuation omitted;
emphasis supplied). A trial court must
have jurors’ communications submitted to the court in writing; . . . mark the written communication as a court exhibit in the presence of counsel; . . . afford counsel a full opportunity to suggest an appropriate response; and . . . make counsel aware of the substance of the trial court’s intended
4 response in order that counsel may seek whatever modifications counsel deems appropriate before the jury is exposed to the instruction.
Lowery v. State, 282 Ga. 68, 76 (4) (b) (ii) (646 SE2d 67) (2007).
But “the numerical division between guilt and innocence during a jury’s
deliberation is not normally available to a defendant” and a trial court may omit that
information when informing counsel of the contents of a jury note. Youmans v. State,
270 Ga. App. 832, 833 (1) (608 SE2d 300) (2004). We discern no obvious error
where, as here, the trial court communicated the substance of the note to counsel,
informed counsel of his intended response, expressly sought comment and input from
counsel, incorporated that input into the response ultimately given to the jury, and
later marked the jury note as an exhibit and put it into the record.
Because Murphy has not shown an obvious error, he has not shown plain error.
Hood, 303 Ga. at 425 (2) (a).
3. Ineffective assistance of trial counsel.
Murphy argues that his trial counsel was ineffective in failing to object both to
the trial court’s handling of the jury note and to the admission of evidence of his bail-
jumping conviction. To prevail on this claim, he “must prove both that his counsel’s
performance was professionally deficient and that, but for the unprofessional
5 performance, there is a reasonable probability that the outcome of the proceeding
would have been different. [Cit.] We need not review both elements of this test if
[Murphy] fails to prove one of them.” Stripling v. State, 304 Ga. 131, 138 (3) (b) (816
SE2d 663) (2018). See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt
2052, 80 LE2d 674) (1984). In this case, Murphy has not shown prejudice as to either
alleged deficiency.
(a) Jury note.
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FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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. http://www.gaappeals.us/rules
March 13, 2020
In the Court of Appeals of Georgia A19A2105. MURPHY v. THE STATE.
MCFADDEN, Chief Judge.
After cashing a counterfeit check at a bank, Samuel Earl Murphy was indicted
for third-degree forgery (OCGA § 16-9-1 (d)) and theft by taking (OCGA § 16-8-2).
On the day he was scheduled to go to trial he fled from the courthouse, and he
subsequently pled guilty to and was convicted of bail jumping (OCGA § 16-10-51
(a)). At Murphy’s later trial on the forgery and theft offenses, his trial counsel did not
object when the state presented evidence of his bail-jumping conviction. His trial
counsel also did not object when, upon receipt of a question from the jury during
deliberations, the trial court paraphrased it for counsel and did not share its disclosure
of an eleven-to-one split in favor of conviction. The jury found Murphy guilty on both counts. On appeal, Murphy argues that
the trial court erred in withholding from counsel the jury’s disclosure of their eleven-
to-one split. But he has not shown that this was plain error. He also argues that his
trial counsel’s failure to object to the trial court’s handling of the jury note and his
failure to object to the admission of evidence of his bail-jumping conviction
constituted ineffective assistance of counsel. But he has not shown both deficient
performance and prejudice. So we affirm.
1. Facts.
Viewed in the light most favorable to the verdict, the trial evidence showed that
on May 17, 2016, Murphy cashed a check for $1545.65 at a branch of the Wells
Fargo bank. The check, which was made out to Murphy, purported to be written on
the account of a business located in Alabama. But Murphy had no connection with
the business, and the business had not written the check to Murphy or authorized it
to be cashed. Instead, it was a counterfeit check, fabricated with the business’s
account and routing numbers. Ultimately the bank reimbursed the business and bore
the loss for the check.
2. Jury note.
2 During its deliberations, the jury sent the trial court a note that stated: “11-1
guilty on both counts. At an impasse. Suggestions[?]” The trial court informed
counsel and Murphy of the note and paraphrased its contents, telling them:
I have received a note from the jury, and the information that is on the note sends me the very clear message that they are not in agreement on a verdict at this point in time, and they feel like even though they’ve been deliberating a whole hour that they’re not going to be able to make any progress, and so they have asked for suggestions. They’ve also disclosed some other information in this note that I’m making the decision that I’m not going to share with the lawyers or Mr. Murphy at this point in time. I will make this note a record later in — part of the record later in this case, but right now I’m not going to.
The trial court and counsel discussed the trial court’s intended response. After
receiving counsel’s input, the trial court then instructed the jury as follows:
Ladies and gentlemen, I have received your note. The court has reviewed it. Just me. I’m the only one who has reviewed it at this point in time, and I understand that you guys are having some difficulty coming to an agreement. However, I would like to encourage you to continue your deliberations. It is your duty to deliberate, so I would ask you to go back and continue your deliberations. Thank you very much.
3 Murphy argues that the trial court violated his right to counsel by failing to
“divulge in full” the note’s contents, specifically the eleven-to-one vote split. He did
not make this objection to the trial court below but argues that the trial court’s actions
constituted plain error. Assuming without deciding that plain-error review applies to
this type of challenge, Murphy “must demonstrate that the . . . error was not
affirmatively waived, was obvious beyond reasonable dispute, likely affected the
outcome of the proceedings, and seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Hood v. State, 303 Ga. 420, 425 (2) (a) (811
SE2d 392) (2018). He has not done so, because he has not shown that this claimed
error was obvious beyond reasonable dispute.
It is true that “the failure of the trial court to inform counsel of the contents of
a jury note and to seek comment or input in the formulation of the court’s response
constitutes a violation of a defendant’s right to counsel.” Dowda v. State, 341 Ga.
App. 295, 299 (3) (799 SE2d 807) (2017) (citations and punctuation omitted;
emphasis supplied). A trial court must
have jurors’ communications submitted to the court in writing; . . . mark the written communication as a court exhibit in the presence of counsel; . . . afford counsel a full opportunity to suggest an appropriate response; and . . . make counsel aware of the substance of the trial court’s intended
4 response in order that counsel may seek whatever modifications counsel deems appropriate before the jury is exposed to the instruction.
Lowery v. State, 282 Ga. 68, 76 (4) (b) (ii) (646 SE2d 67) (2007).
But “the numerical division between guilt and innocence during a jury’s
deliberation is not normally available to a defendant” and a trial court may omit that
information when informing counsel of the contents of a jury note. Youmans v. State,
270 Ga. App. 832, 833 (1) (608 SE2d 300) (2004). We discern no obvious error
where, as here, the trial court communicated the substance of the note to counsel,
informed counsel of his intended response, expressly sought comment and input from
counsel, incorporated that input into the response ultimately given to the jury, and
later marked the jury note as an exhibit and put it into the record.
Because Murphy has not shown an obvious error, he has not shown plain error.
Hood, 303 Ga. at 425 (2) (a).
3. Ineffective assistance of trial counsel.
Murphy argues that his trial counsel was ineffective in failing to object both to
the trial court’s handling of the jury note and to the admission of evidence of his bail-
jumping conviction. To prevail on this claim, he “must prove both that his counsel’s
performance was professionally deficient and that, but for the unprofessional
5 performance, there is a reasonable probability that the outcome of the proceeding
would have been different. [Cit.] We need not review both elements of this test if
[Murphy] fails to prove one of them.” Stripling v. State, 304 Ga. 131, 138 (3) (b) (816
SE2d 663) (2018). See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt
2052, 80 LE2d 674) (1984). In this case, Murphy has not shown prejudice as to either
alleged deficiency.
(a) Jury note.
Murphy argues that his trial counsel was ineffective for failing to object when
the trial court paraphrased the contents of the jury note rather than reading it
verbatim. As detailed above, the trial court’s actions in response to the note were not
plain error, and
the test for harm under plain error review is equivalent to the test in ineffective assistance of counsel cases for whether an attorney’s [allegedly] deficient performance has resulted in prejudice of constitutional proportions. As a result, [Murphy’s] ineffective assistance claims based on [trial counsel’s performance in connection with the jury note] are without merit.
Williams v. State, 304 Ga. 455, 460 (3) n.4 (818 SE2d 653) (2018) (citation and
punctuation omitted).
6 (b) Bail-jumping conviction.
Murphy argues that his trial counsel was ineffective for failing to object to the
evidence that he fled the courthouse on the day he was to be tried and so was
convicted of bail-jumping. Our new Evidence Code limits the admission of evidence
of other criminal acts, see OCGA § 24-4-404 (b) (“Rule 404 (b)”), but those
limitations “do not apply to ‘intrinsic evidence.’” Hill v. State, 351 Ga. App. 58, 65
(3) (c) (830 SE2d 478) (2019) (citation and punctuation omitted). See Baughns v.
State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016) (Georgia’s prior rule
regarding the admissibility of “res gestae” evidence was “carried forward to the new
Evidence Code under the concept of ‘intrinsic facts’ evidence, as compared to
evidence of ‘extrinsic acts’ which are generally inadmissible pursuant to OCGA § 24-
4-404 (b)”). The trial court held that the evidence of Murphy’s conviction for bail-
jumping was admissible as intrinsic evidence.
Murphy argues that the flight in this case does not meet the definition of
“intrinsic evidence” that Georgia has adopted from the Eleventh Circuit. Under that
definition,
[e]vidence is admissible as intrinsic evidence when it is (1) an uncharged offense arising from the same transaction or series of
7 transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense. . . . [E]vidence of other acts is inextricably intertwined with the evidence regarding the charged offense if it forms an integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted.
Williams v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350 (2017) (citations and
punctuation omitted). It is arguable that Murphy’s flight does not fall within any of
those categories.
But even if we assume for purposes of argument that the evidence of Murphy’s
bail-jumping conviction was not intrinsic, and that his trial counsel performed
deficiently in failing to object to its admission on that ground, Murphy has not shown
that this alleged deficiency prejudiced him. The evidence of his guilt was
overwhelming; it showed that he cashed a check for over $1500 made out to him on
the account of a business in another state with which he had no connection.
“[B]ecause the evidence of [his] guilt was overwhelming, he has failed to show that
he was prejudiced by counsel’s alleged deficient performance. Accordingly, his claim
of ineffective assistance of counsel is without merit.” Taylor v. State, 303 Ga. 583,
585 (2) (814 SE2d 302) (2018).
8 (c) Cumulative effect of alleged deficient performance.
“Although we have evaluated each of [Murphy’s] claims of ineffective
assistance of counsel separately, we also recognize that the effect of prejudice from
counsel’s deficient performance is viewed cumulatively.” Bentley v. State, 307 Ga.
1, 11 (2) (d) (834 SE2d 549) (2019) (citation and punctuation omitted). We have
considered the cumulative effect of the deficiencies assumed above and “conclude
that they do not establish a reasonable probability that the result of [Murphy’s] trial
would have been different in the absence of the deficiencies alleged.” Id.
Judgment affirmed. McMillian, P.J., and Senior Appellate Judge Herbert E.
Phipps concur.