Brown v. State

*332 HUNSTEIN, Presiding Justice,

dissenting.

The trial court, deliberately and over objection by the defense, used a verdict form that did not provide the jury with the option of a “not guilty” verdict on the offenses of felony murder and voluntary manslaughter. The verdict form was coupled with a jury charge that failed to inform the jurors that the “not guilty” option for malice murder on the form could operate as a general acquittal of the felony murder and voluntary manslaughter offenses and mentioned those two offenses expressly only in the context of a verdict of guilt. Because the form failed to show “a clear option of a not guilty verdict,” with the result that a reasonable juror could easily “have been misled into believing that option was not available,” Chapman v. State, 258 Ga. 214, 217 (4) ( 367 SE2d 541 ) (1988), and the trial court’s instructions on the use of the verdict form did not correct the problem, see id., I must dissent to the majority’s conclusion that the jury here had “ample guidance” from the trial court and there was “no error” in the verdict form used.

I cannot reconcile the majority’s approval of the verdict form at issue here, with its total omission of the “not guilt/’ option for the felony murder and voluntary manslaughter offenses, with this Court’s prior precedent regarding verdict forms. In Smith v. State, 249 Ga. 228 (5) ( 290 SE2d 43 ) (1982), we addressed the use of pre-printed verdict forms and expressed concern that the jury might “draw an inference, however unfounded, of predisposition on the part of the trial judge” because of the “antecedence of the word ‘guilty’ over the words ‘not guilty’ ” in the form. Id. at 232 . In Chapman v. State, supra, 258 Ga. at 217 (4), it was the “clear option of a not guilty verdict” and the “instructions on the use of the verdict form” that persuaded us that “no reasonable juror could have been misled” by the positioning of the verdict options on the form. See also Huynh v. State, 239 Ga. App. 62 (5) ( 518 SE2d 920 ) (1999). It was not until Rucker v. State, 270 Ga. 431 (5) ( 510 SE2d 816 ) (1999) that this Court concluded that, “[i]n and of itself, merely listing the possible guilty verdict option(s) before the ‘Not Guilty’ option does not render the verdict form misleading so as to constitute reversible error. [Cit.]” Id. at 435 (5).

From our holding in Rucker, supra, that there is no automatic suggestiveness in verdict forms positioning a “guilt/’ option before a “not guilt/’ option, the majority now approves without reservation the use of a verdict form that eliminates the “not guilt/’ option altogether. The verdict form here does not even contain a blank space in front of the “guilt/’ option so that the jury could write a “not” in the space. Compare Chance v. State, 154 Ga. App. 543 (2) ( 268 SE2d 737 ) (1980). Given that the mere antecedence of the word “guilt/’ over the words “not guilt/’ was sufficient to raise this Court’s concern that this arrangement of verdict options might be perceived by a juror “to be an *333 expressive view of the court,” Smith v. State, supra, what “perception” must a reasonable juror draw from the complete omission of the “not guilty” option on a verdict form?

Brown’s jury was provided with neither a felony murder “not guilty” verdict option nor a voluntary manslaughter “not guilty” verdict option. It was not even provided with a general “not guilty” verdict option. Rather, the only “not guilty” option available for any of the homicide offenses was appended to the malice murder offense. Use of the form was reversible error because the form provided no “clear option of a not guilty verdict” for the felony murder and voluntary manslaughter offenses and thus could have confused or misled a reasonable juror into believing that option was not available. Chapman v. State, supra. Accord Illinois v. Biggerstaff, 679 NE2d 118 (Ill. App. Ct. 5th Dist. 1999) (failure to provide acquittal option on verdict form constituted reversible error).

Contrary to the majority’s claim, the trial court’s instructions on the use of the verdict form did not cure hut instead compounded the error. A review of the charge as a whole establishes that the only time that the trial court specifically addressed the jury’s verdict in regard to the felony murder and voluntary manslaughter offenses, the trial court spoke solely in terms of guilt.

In your verdict form, Count I will contain findings relating to malice murder, felony murder and voluntary manslaughter. If you do not believe beyond a reasonable doubt that the defendant is guilty of malice murder, then you would be authorized to find him guilty of felony murder or voluntary manslaughter. If you do find him guilty beyond a reasonable doubt of either of those offenses, you should specify the offenses in which you find, him guilty. The form of your verdict would be we, the jury, find the defendant guilty of, and you would name the offense.

(Emphasis supplied.)

As the majority opinion accurately reflects, the trial court did instruct the jury about acquittal. But in that instruction, the trial court used only general terms, speaking of “all charges” or Brown’s guilt on “some Counts and not guilty of some Counts.” 7 The trial court never expressly informed the jury that a verdict of not guilty of malice *334 murder operated as a general acquittal of felony murder and voluntary manslaughter; it never even informed the jury in more general terms that a verdict of not guilty of malice murder operated as a general acquittal of all the homicide offenses. Although it told the jury that felony murder and voluntary manslaughter were included offenses or lesser offenses of murder, it never explained to the jury what those terms meant. All the jury knew was that it was authorized to find Brown guilty of felony murder or voluntary manslaughter if the evidence of malice murder was not sufficient and that it could acquit Brown of “all charges” by marking the “not guilty” option on a form that did not contain a “not guilt/’ option for two of the offenses listed on the form.

Decided March 17, 2008.

Maryellen Simmons, Mark A. Hinds, for appellant.

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Assistant District Attorney, Thurbert E. Baker, Attorney General, Elizabeth A. Harris, Assistant Attorney General, for appellee.

“The defendant, having entered a general not-guilty plea, was entitled to a jury empowered to decide that he was not guilty.” Illinois v. Biggerstaff, supra, 679 NE2d at 121 .1 would recognize that a jury is entitled to consider a form that sets forth all the available verdicts, “not guilt/’ as well as “guilty,” and that a complete, clear and accurate verdict form is “vital to the ... integrity of the justice system and [a] defendant’s right to a fair trial.” Id. Errors in a verdict form cannot be mooted by the verdict rendered on the flawed form. Therefore, because Brown’s verdict form and the trial court’s charge would have misled a reasonable juror into believing a “not guilt/’ option was not available on the felony murder and voluntary manslaughter offenses, I must dissent to the affirmance of the judgment entered on Brown’s conviction and sentence.

The charge was:

If you find that the State has failed to prove the defendant’s guilt beyond a reasonable doubt as to all charges or if you have any reasonable doubt as to the defendant’s guilt as to all charges, then it would be your duty to acquit the defendant, and the form of your verdict would be we, the jury, find the defendant *334 not guilty, and you would specify in your verdict each count upon which you have found the defendant not guilty.

If you find the defendant guilty of some Counts and not guilty of some Counts, you should specify each Count upon which you find him guilty and each Count upon which you find him not guilty.

(Emphasis supplied.)