This is a BIG deal…Tom’s Constitutional Rights are being trampled!

During the Holiday month as we are nearing the peak travel days, Zerbarini’s trial is dragging and the jury is deliberating.

Shortly after the trial court meal break Friday December 15th a note from the jury was sent to the judge which resulted in 1) the trial court judge misleading trial counsel, Judge Crawford hid the true meaning of the jury’s question, 2) the trial court answered the jury’s question incorrectly; in fact it gave the opposite incorrect answer, 3) the trial court then gave a coercive, impermissible, improper charge to the jury compounding the errors which culminated in Tom’s Constitutional Rights being trampled by the trial courts deception, actions and coercive statements…

ISSUE II

PETITIONER-APPELLANT’S CONSTITUTIONAL RIGHT TO COUNSEL PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AS WELL AS ARTICLE I, SECTION I, PARAGRAPH XIV OF THE GEORGIA CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO INFORM PETITIONER-APPELLANT’S COUNSEL OF THE CORRECT MEANING OF A NOTE FROM THE DELIBERATING JURY. THIS CONSTITUTIONAL VIOLATION WAS NOT HARMLESS ERROR BEYOND A REASONABLE DOUBT.  HENCE, THIS GREAT WRIT MUST BE GRANTED.

A criminally accused has the Constitutional right to counsel pursuant to the Sixth and Fourteenth Amendments of the United States Constitution as well as Article I, Section I, Paragraph XIV of the Georgia Constitution. Lowery v. State, 282 Ga. 68, 646 S.E.2d 67 (2007). Said Constitutional right attaches at the initiation of an adversarial judicial proceeding and continues throughout all critical stages of the prosecution. Id. In Murphy v. State, 354 Ga. App. 560(2), 841 S.E.2d 153 (2020), the Court of Appeals held that the criminally accused’s Constitutional right to counsel is violated when the trial court fails to inform counsel of the correct content of a jury’s note and fails to seek comment or input in the formation of the response to the question. See also Lowery v. State, 282 Ga. 68(4,b,ii), 646 S.E.2d 67 (2007);  Dowda v. State, 341 Ga. App. 295(3), 799 S.E.2d 807 (2017); Compare Weaver v. State, 336 Ga. App. 206(2b), 784 S.E.2d 61 (2016)(failure to accurately inform counsel of the contents of the jury’s note was presumed, but not decided, to violate the accused’s Constitutional right to counsel). In light of this Constitutional right, this Honorable Court mandates trial courts:

To have jurors’ communications submitted to the court in writing; to mark the written communication as a court exhibit in the presence of counsel; to afford counsel a full opportunity to suggest an appropriate response; and to make counsel aware of the substance of the trial court’s intended 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 at 76.

In Dowda v. State, supra, the trial judge received a note from the deliberating jury stating as follows: “Sir, we cannot reach a unanimous decision.” Id. The note also indicated the jury had voted “4 – not guilty based on evidence [and] 2-innocent on evidence.” Id. The note did not indicate whether the jury was split on both counts of the Accusation or just one. Id. When the Dowda trial court received the note from the jury, the trial court informed all counsel that the note relayed that the jury could not reach a unanimous verdict. Id. The trial court did not show the note to defense counsel or advise defense counsel of its entire content or afford counsel an opportunity to suggest an appropriate response in light of the true content of the note. The trial court then brought the jury into the Courtroom and encouraged them to continue their deliberations. The Dowda Court held: 

. . . [g]iven the jury’s obvious confusion, the trial court’s failure to provide counsel with an opportunity to review the jury note and know its full contents and then discuss the trial court’s response was not harmless error. Instead, the action of the trial court kept the defendant’s counsel ignorant to the jury’s confusion and deprived defendant of his right to counsel. . .. [A]s a consequence, we must reverse Dowda’s trespass conviction. . ..
Id at 299.

In the case at bar, after eight (8) hours and twenty one (21) minutes of deliberations, the jury sent the following question, in writing, to the trial court: “Can we be a hung jury on one or more counts and convict on others?” (T. 1655, 1669, 1672, 1687-1690, 1892). The trial court refused to show Petitioner-Appellant’s trial counsel the deliberating jury’s note and explained to the parties, “I am not going to show you [the deliberating jury’s] note. I’m not going to tell you what [the] note says, except for the first part.” (T. 1682-1690, 1892; specifically T. 1683, lines 15-17). The trial court then proceeded to completely mislead Petitioner-Appellant’s trial counsel and the prosecutors as to the content of the note by causing the parties to believe that the jury had, in fact, reached a verdict on four of the five indicted counts and were not unanimous on the remaining count. (T. 1682-1687, 1892; R. 143-147). In reality, this note clearly articulated that no verdict was definitively reached on any count, and that  the jury could potentially be deadlocked at some time in the future on one or more counts. (T. 1892). The trial court’s grave mischaracterization of the jury’s note misled Petitioner-Appellant’s trial counsel to believe that the note conveyed something entirely different than what the writing actually communicated. (T. 1682-1690; MNT. dated 11-9-18, pages 130-140).

Blind to the trial court’s misrepresentation, Petitioner-Appellant’s trial counsel declared, “[t]hey have a verdict on four of the five counts, so I’m not asking for an Allen charge. . . . If they were split on all of the counts then that would be different, [b]ut . . . four out of five counts they have a verdict. . . .” (T. 1685, lines 4-11). Petitioner-Appellant’s trial counsel explained that a verdict on four (4) of the five (5) counts was substantial enough to effect Petitioner-Appellant’s life one way or the other so he wanted the verdicts to be published and was indifferent about a coercive jury charge on the final count. (MNT. dated 11-9-18, pages 130-140). Based upon the erroneous information from the trial court that a verdict was cemented on all but one (1) count, Petitioner-Appellant’s trial counsel agreed to the prosecution’s and the trial court’s desire to give a coercive Allen charge. (T. 1685-1690; MNT. dated 11-9-18, pages 130-140). Thus, as in Dowda v. State, supra, the trial court kept PetitionerAppellant’s trial counsel completely ignorant to the actual content and essence of this jury note and consequently, Petitioner-Appellant could not meaningfully suggest a proper response to this jury note. Therefore, Petitioner-Appellant was denied his Constitutional right to counsel. (T. 1682-1690, 1892; MNT. dated 11-9-18, pages 130-140). See Murphy v. State, supra.

This jury note’s query “[c]an we be a hung jury on one or more counts and convict on the others?,” excludes any reasonable interpretation of this note that the jury actually reached a verdict on four (4) counts and deadlocked on one remaining count as the trial court encouraged. (T. 1682-1690, 1892). By intentionally forbidding Petitioner-Appellant’s trial counsel from viewing this material jury communication and affirmatively misinforming Petitioner-Appellant’s trial counsel on the content of this note, Petitioner-Appellant was prevented from forming and suggesting a meaningful response to the jury’s inquiry, effectively stripping Petitioner-Appellant of his Constitutional right to counsel. See Dowda v. State, supra.

In Humphreys v. State, 287 Ga. 63, 77-78, 694 S.E.2d 316 (2010), this Supreme Court held that “the trial court’s summary of the note enabled Humphreys’ experienced defense counsel to infer that the jurors had agreed on at least one statutory aggravating circumstance but had not agreed as to the sentence” because had the jury agreed on anything else, there would be no need for further deliberations. Therefore, this High Court logically reasoned that Humphreys failed to show what different or further action he would have taken had the trial court read the note verbatim and thus, no Constitutional error occurred.

The case at hand is diametrically opposed to Humphreys v. State, supra, for several reasons. First, it is clear that Petitioner-Appellant’s trial counsel was mislead by the trial court’s discussion as to the meaning of the jury’s note. (T. 16831688;1892). Second, if Petitioner-Appellant’s trial counsel was given the opportunity to read the note or was accurately informed of the note’s content, he would have urged the trial court to  respond to the jury with a simple “yes,” rather than for the trial court to give a defective, coercive instruction. (MNT. dated 11-9-18, pages 130140). These facts require reversal of Petitioner-Appellant’s conviction. Murphy v. State, supra; Dowda v. State, 341 Ga. App. 295 at 299; United States v. Toliver, 330 F.3d 607, 616 (3rd Cir. 2003) quoting United States v. Parent, 954 F.2d 23, 26 (1st Cir. 1992)

(“the real harm is . . . that the aggrieved party will have lost the value of the chance: the opportunity to convince the judge that some other or different response would be more appropriate . . . . Being kept in the dark, defense counsel was powerless to prime the pump of persuasion.”).

Based upon the above, Petitioner-Appellant’s Constitutional right to counsel was violated by the trial court’s improper conduct. The abridgement of the Sixth and Fourteenth Amendments of the United States Constitution as well as Article I, Section I, Paragraph XIV of the Georgia Constitution’s right to counsel is reversible error unless this violation was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967); Lowery v. State, supra.

This error cannot be deemed harmless beyond a reasonable doubt as the evidence presented at trial was not overwhelming as Petitioner-Appellant (i) put forth a good character defense; (ii) testified unequivocally that these crimes did not occur; (iii) presented expert testimony that these allegations were ripe for false memories and falsehoods; and (iv) stressed the fact that there was a complete lack of any medical, video, DNA or scientific evidence to support these charges. (See Entire Trial Transcript, specifically T. 1069-1132, 1139-1196, 1328-1422).

Furthermore, the harm and prejudice to Petitioner-Appellant was great, as discussed below.

After misrepresenting the content of the jury note, the trial court compounded the harm to Petitioner-Appellant by giving the deliberating jury the following improper, erroneous coercive “Allen” charge:

[TRIAL COURT]: . . . Ladies and gentlemen, y’all have sent me in a note. Let me–Let me see if I can explain this note in more detail than normal. I’m actually not going to tell you a direct answer to your note. What I am going to tell you–and, Mr. Foreman, I may need you to answer a question for me. If–When I ask a question I do not wish to know how your jury is leaning one way or the other. I don’t want it on the record any way which you may be leaning on anything. All I want to know, sir–First of all, ladies and gentlemen, I’m going to tell you–or ask you, through the foreman, if you go back and continue deliberating–You’re to reach a verdict, a unanimous verdict, on each count. But, ladies and gentlemen, I’m going to ask the foreman. Sir, do you believe that it would be possible to reach a unanimous verdict on every count, given more time?

[FOREMAN]: I would say so.

[TRIAL COURT]: All right. That tells me what I need to know, ladies and gentlemen. . ..All I want to tell you is we’ve been here a long time; y’all have been very attentive; you’ve been brought in and out; we’ve been deliberating for quite awhile; however, since the foreman believes that a decision could be made on each count as a unanimous verdict, I’m going to ask you to please retire and continue to work. If you reach a point, Mr. Foreman, of – that you think it is impossible I’d like to know; and then I will look at the options at that time. But it needs to be a unanimous verdict on each count, ladies and gentlemen, if you may reach it. All right. Thank you.
(T. 1688, line 20 through T. 1690, line 5)(Emphasis added).

As argued above, rather than directly and correctly answering this question, the trial court instructed the jury that if they continue to deliberate, they must reach a unanimous verdict on all counts. (T. 1689-1690).

Thus, as proven above, the trial court (i) clearly and materially distorted the meaning of the jury’s note to the parties; (ii) did not advise Petitioner-Appellant or his trial counsel about the note’s true content; (iii) never permitted Petitioner-Appellant or Petitioner-Appellant’s trial counsel to see this note; (iv) never accurately answered the jury’s question; and (v) unleashed a coercive misstatement of law upon the minds and conscience of the jury, to wit: that the jury must reach a unanimous verdict on each count. (T. 1683-1693).

The misinstructed jury was then removed from the Courtroom charged with the mission to reach a verdict, which they did, just fifty two (52) minutes thereafter. (T. 1690-1693; R. 290).

As discussed supra, the trial court wrongly led the parties to believe that the jurors inquired whether they could be hung on just one count as they have already  reached verdicts on the other four counts. (T. 1682-1687). In actuality, the note, designated Court Exhibit Number 16, never communicates this message. (T. 1892). Therefore, without question, the trial court misrepresented the jury’s inquiry and the coercive charge was error and cannot be deemed harmless beyond a reasonable doubt.

The coercive impact of the trial court’s erroneous Allen charge was gravely worsened by the fact that the trial court distorted the meaning of the jury’s note and never answered the jury’s question. It is axiomatic that “[t]he jury should be free to act and free from any seeming or real coercion on the part of the court.” Riggins v. State, 226 Ga. 381, 384, 174 S.E.2d 908 (1970). The trial court’s erroneous Allen charge violated this principle and trampled the rights of Petitioner-Appellant.”

In Division (1a) of Zerbarini v. State, supra, the Honorable Court of Appeals of Georgia correctly found that the trial court violated Petitioner-Appellant’s Constitutional right to counsel by misleading Petitioner-Appellant’s trial counsel regarding the contents of a note received from the deliberating jury. Yet, the Zerbarini Court held that this Constitutional error was harmless beyond a reasonable doubt.
(See Exhibit “A,” pages 9-14). This finding was error and must be reviewed by this High Court for the following reasons.

First, the Zerbarini Court’s Opinion is inconsistent as the Appellate Court held that “. . . a trial court is permitted to give an Allen charge when the jury indicates that it is unable to reach a unanimous decision.” (See Exhibit “A,” pages 9-14, specifically Division (1b) and Footnote 1). Additionally, the Court of Appeals wrote that “[i]ndeed, under these circumstances, the trial court had the discretion to give the Allen charge, even if trial counsel had vigorously objected during the conference.”(See Exhibit “A,” pages 9-14). However, in this same Opinion, the Zerbarini Court correctly found that the jury’s note did not indicate that the jury was “deadlocked.”(See Exhibit “A,” pages 14-18, specifically pages 16-17). 

Since the deliberating jury’s note did not indicate that they were “deadlocked,” the trial court was not permitted to give any Allen charge, especially this incomplete/coercive “Allen” charge.

Further, as found by the Appellate Court, if Petitioner-Appellant’s trial counsel had been accurately advised of the content of this note, PetitionerAppellant’s trial counsel would have correctly urged that no Allen charge was permitted and the answer to the jury’s question was “yes.” (See Exhibit “A,” pages 9-14). The Court of Appeals’ legal and factual analysis in Division (1) of Zerbarini v. State, supra, was not fully developed as, based upon these facts, this error cannot be deemed harmless beyond a reasonable doubt. (See Exhibit “A,”  pages 9-14).

Second, …Although the Appellate Court correctly found this “Allen” charge to be defective, it failed to recognize that before the coercive, incomplete, inaccurate Allen charge was given to the deliberating jury, the trial court began its edict by charging “[f]irst of all, ladies and gentlemen, I’m going to tell you–or ask you, through the foreman, if you go back and continue deliberating–You’re to reach a verdict, a unanimous verdict, on each count.” (T. 1688-1689). This is too forceful of a jury instruction to be swept under the harmless error beyond a reasonable doubt rug. ” (See Exhibit “A,” pages 9-14).

How could these above discussed errors be deemed harmless beyond a reasonable doubt as found in Division (1a) of Zerbarini v. State, supra? (See Exhibit “A,” pages 9-14). Individually or in combination these errors mandate that the Court of Appeals’ conclusion in Division (1a, b and c) of Zerbarini v. State, supra, must be analyzed by this Honorable Court.

Based upon the above, Petitioner-Appellant’s Constitutional right to counsel has been violated and this (these) error(s) cannot be found to be harmless beyond a reasonable doubt, to wit: the State cannot prove beyond a reasonable doubt that the combination of these errors did not contribute to the verdict. See Johnson v. State, __ Ga. __(4c), 853 S.E.2d 635 (2021); Bettis v. State, 357 Ga. App. (1),587, 851 S.E.2d 158 (2020).