Simmons v. State

733 S.E.2d 280, 291 Ga. 705, 2012 Fulton County D. Rep. 3167, 2012 WL 4856997, 2012 Ga. LEXIS 775
Supreme Court of Georgia·Decided October 15, 2012·No. S12A0808·Published·Cited by 52 cases

Opinion

Hunstein, Chief Justice.

Kelvin Simmons was convicted for the malice murder of Sheila Easley in February 2002.1 Following the trial court’s denial of his motion for new trial, Simmons appeals. He contends the evidence was insufficient to convict him, the trial court committed procedural errors, the trial court erred in instructing the jury, and trial counsel was ineffective. Finding no error, we affirm.

The evidence adduced at trial showed that Sheila Easley’s body was discovered inside the doorway of her home after she did not return to work following her lunch break on January 29, 2001. Easley’s upper body was dressed as it had been at work earlier that day, but her lower body was nude except for a jacket covering her. Her underwear was ripped in half under her body and her pants were missing. Investigators found dried seminal fluid on her leg and lower abdomen, which tested positive for Simmons’ DNA. The State Medical Examiner’s office performed an autopsy on Easley and determined that she died as a result of strangulation.

Testimony at trial showed that Simmons and Easley had been in a relationship on and off since 1997 and had twins together in 1998. Over the course of the relationship, Simmons became increasingly suspicious, jealous, and abusive. In March of 2000, Easley ended the relationship and asked Simmons to move out. After the break-up, [706] Simmons frequently showed up at Easley’s workplace, watched her house, called her mother’s house at all hours of the night, and went through the mail in her mailbox. There was evidence that suggested Simmons had been in the crawl space under Easley’s house with make-shift listening and recording devices.

On the day Easley was killed, Simmons was seen by one witness shortly after 3:00 p.m. speeding around a curve less than a mile from Easley’s home, going so fast the witness was run off the road. Simmons visited his mother’s house around 4:00 p.m. He washed and dried clothes that he had brought in a plastic bag. The GBI later recovered the clothes and identified them as the clothes he was seen wearing earlier in the day. Around 5:30 p.m., Simmons went to the car wash where his nephew, Jabber Sanford, worked. When Sanford visited him after his arrest, Simmons asked Sanford to say that he had come by at 3:00 p.m. rather than 5:30 p.m.

At trial, the State produced three of Simmons’ former girlfriends who testified about abusive relationships with Simmons. The women testified that Simmons was extremely jealous and suspicious and that he physically abused them and threatened to kill them. Two women testified that Simmons had choked them.

1. Simmons contends that his conviction is based entirely on circumstantial evidence, and the jury must find that the evidence is sufficient to exclude every reasonable hypothesis except for that of his guilt. See OCGA § 24-4-6. Whether the evidence excluded every other reasonable hypothesis but that of guilt is a question for the jury. Smith v. State, 290 Ga. 428 (1) (721 SE2d 892) (2012). We will not disturb the jury’s verdict unless it is insupportable as a matter of law. Id. The evidence in this case, though circumstantial, was sufficient for the jury to conclude beyond a reasonable doubt that Simmons was guilty of malice murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Despite Simmons’ allegation to the contrary, the trial court did not err in denying Simmons’ motion for continuance. Denial of a motion for continuance is within the sound discretion of the trial court, and this Court will not interfere unless there was a clear abuse of discretion. Collum v. State, 281 Ga. 719 (5) (642 SE2d 640) (2007). Simmons sought a continuance to gather more data or obtain an expert’s opinion regarding DNA evidence that he thought would implicate another person. The trial court found that since Simmons had not opted in to reciprocal discovery under OCGA § 17-16-2, he was not entitled to additional documents, nor the delay to obtain them. Thus, the trial court did not abuse its discretion in denying the motion for continuance.

[707]*7073. Simmons moved the trial court to grant a change of venue, claiming that his trial and a prior mistrial had received far-reaching publicity that was likely to contaminate the jury pool in Baldwin County. The trial court denied the motion. The denial of a motion for change of venue will not be disturbed absent an abuse of discretion. Walden v. State, 289 Ga. 845 (2) (717 SE2d 159) (2011). The trial court initially denied Simmons’ motion for change of venue outright, but then reconsidered and agreed to inquire into the impact of pre-trial publicity during voir dire. “[T]he question is not the number of jurors who had heard about the case; rather, the question is whether those jurors who had heard about the case could lay aside their opinions and render a verdict based on the evidence.” Id. at 849 (citation and punctuation omitted). During voir dire, none of the jurors showed any bias or influence due to pre-trial publicity. Therefore, it was not error for the trial court to deny the motion to change venue.

4. Simmons complains that the trial court erred because the first alternate juror was selected despite being married to a juror who served on the jury during the prior mistrial.

There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, a jury verdict will not be upset solely because of such conduct, unless the [conduct is] so prejudicial that the verdict must be deemed “inherently lacking in due process.” Our inquiry then must be directed to whether this error is so inherently prejudicial as to require a new trial, or whether it is an immaterial irregularity without opportunity for injury.

Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996) (citations and punctuation omitted). Here, when the trial court learned that the alternate’s wife had served on the jury in the first trial, it questioned the juror. The juror stated that he had told the other members of the jury that his wife had been on the jury in the first trial, which resulted in a mistrial. The juror did not know why the first trial resulted in a mistrial. Following this inquiry, the trial court immediately dismissed the juror, replaced him with the other alternate, and questioned the jury as a whole. None of the other jurors heard the first alternate juror say anything about the case itself. We find that any improper jury conduct was harmless since the juror did not know why the initial trial resulted in a mistrial and none of the other jurors heard him say anything material about that trial. Certainly, the [708] conduct was not so prejudicial that the verdict is inherently lacking in due process as to require a new trial.

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Simmons v. State, 733 S.E.2d 280, 291 Ga. 705, 2012 Fulton County D. Rep. 3167, 2012 WL 4856997, 2012 Ga. LEXIS 775 (Ga. 2012).

733 S.E.2d 280 (Simmons v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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