Anderson v. State

309 Ga. 618

847 S.E.2d 572

ANDERSON

v.The STATE.

S20A0873

Supreme Court of Georgia.

Decided: August 24, 2020

Isabella K. Levy, Katherine M. Mason, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth Rosenwasser, Assistant Attorney General, for appellee.

Melton, Chief Justice.

Following a jury trial, Dexter Anderson appeals his convictions for the felony murder of his girlfriend, Charlotta Marie Lockhart, and possession of a firearm during the commission of a felony. Anderson contends, among other things, that the evidence was insufficient to support his conviction for felony murder, that he received an incomplete transcript of his trial proceedings, that trial counsel was constitutionally ineffective, and that the trial court erred by failing to charge the jury on the offense of possession of a firearm during the commission of a felony.¹ For the reasons set forth below, we affirm.

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed that Anderson and Lockhart, who was nicknamed "Nook," had a history of relationship difficulties. Lockhart's cousin, Niecey Langston, testified that, approximately a month before Lockhart was shot, Lockhart came to Langston's home to have her hair styled. After Lockhart was dropped off by Anderson, Lockhart told Langston she could not have her hair done at Langston's home because a number of male friends were visiting Langston's boyfriend there. Testimony indicated that Lockhart's concern was due to Anderson's jealousy. Langston and Lockhart then went to another friend's home. While there, Anderson called Lockhart, and, in response to this call, Langston drove Lockhart to meet Anderson at a nearby gas station where Anderson was waiting. When the women arrived, Anderson was upset and holding a gun. Anderson was angry that Lockhart had not kept him informed as to her whereabouts.

Lockhart's best friend, Gabrielle Anthony, testified that, on one earlier occasion, Lockhart contacted Anthony in the middle of the night to pick her up after she had a fight with Anderson. When Anthony arrived at Lockhart's neighbor's home (where Lockhart initially fled), Lockhart ran to Anthony's car wearing no shoes and only a nightgown. Anthony noticed that Lockhart had bruises on her thighs when she got into her car. Anthony further testified that she saw Lockhart in February 2013, approximately a month before Lockhart's death. On that day, Lockhart had again asked Anthony to pick her up after she and Anderson fought. On that occasion, Anderson followed the women to Anthony's home and attempted to kick down the front door while yelling at Lockhart to come outside. Anthony called the police, and Anderson left, but he then returned later and again yelled for Lockhart to come outside. Anderson also threatened Lockhart, stating: "B***h, I'll kill you." Anthony further testified that, during this incident, Lockhart was crying and scared of Anderson, and that Anderson "always" told Lockhart, "If I can't have you, can't nobody have you."

On March 16, 2013, the day of the shooting, Lockhart and Anderson attended Lockhart's great-grandmother's birthday party. During the party, Anderson wanted Lockhart to leave with him, but she resisted. Lockhart's aunt, Mary Jane Hilton, saw Anderson and Lockhart arguing in a vehicle. During the argument, Anderson was "playing" with a firearm. Anderson and Lockhart left the party around 7:45 p.m.

Later, while the party was continuing, Lockhart's grandmother, Corrine Simpkins, received a phone call from Anderson, who said, "I'm sorry. I killed Nook[.] I'm so sorry." Simpkins, overwhelmed by the call, handed the phone to her daughter, Lashonda Davis. Anderson then told Davis, "Nook's gone, she's dead[.] I killed her. I mean, she shot herself." Anderson was shouting and screaming into the phone. Davis then passed the phone to another relative, Ricky Jordan. Anderson told Jordan, "This is Dex," and he explained that Lockhart had been shot because they had been "playing."

When police arrived at Anderson's home, Anderson was "upset, ranting and raving inside the house." Lockhart had been shot in the back of her head, and her body was slumped over on the couch. Anderson was punching the walls, throwing items around, and breaking windows. He repeatedly grabbed Lockhart and cried, "I'm sorry. I'm sorry. I trust you. I trust you." Police recovered a Bersa .40-caliber handgun from the kitchen counter, which was later determined to be the weapon used to shoot Lockhart. Hilton also identified this weapon as the one with which she saw Anderson playing during his argument with Lockhart at the birthday party.

The medical examiner, Dr. Daniel Brown, determined that the cause of death was a gunshot wound located on the back of the left side of Lockhart's head, just above her ear. Dr. Brown further testified that this injury was not a contact wound, but, instead, the weapon causing the injury had been fired from a distance. He also opined that this gunshot was not a typical suicide gunshot wound, and that the manner of death was homicide.

This evidence was sufficient to enable the jury to find Anderson guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).²

2. Anderson contends that the trial court should have granted him a new trial because the State failed to provide him with a complete transcript. We disagree.

The record shows that, due to the "corruption" of a recording, the trial testimony of two witnesses, Davis and Jordan, could not be transcribed. For this reason, the trial court held a reconstruction hearing pursuant to OCGA § 5-6-41, which provides, in relevant part:

(f) Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth....

(g) Where a trial is not reported as referred to in subsections (b) and (c) of this Code section or where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter as referred to in subsection (e) of this Code section. In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.

As noted in OCGA § 5-6-41 (g), the correctness of a recreated transcript, as determined by the trial court, is final and not subject to review. See Bamberg v. State , 308 Ga. 340, 347 (2), 839 S.E.2d 640 (2020). But whether the transcript is complete pursuant to OCGA § 5-6-41 (f) is reviewable on appeal. See Johnson v. State , 302 Ga. 188, 194 (3) (b), 805 S.E.2d 890 (2017) ("An appellant is entitled to a complete and correct transcript, one that discloses what transpired in the trial court not only truly but fully." (citation and punctuation omitted)). "Complete," however, is not synonymous with "verbatim."

Bamberg , supra, 308 Ga. at 349-350 (2), 839 S.E.2d 640. See also OCGA § 5-6-41 (d) ("where the trial is not reported or the transcript of the proceedings for any other reason is not available and the evidence is prepared from recollection, it may be prepared in narrative form"). A narrative transcript, though, "must be sufficiently detailed to allow the defendant to identify alleged errors and to allow meaningful appellate review." Johnson , supra, 302 Ga. at 194 (3) (b), 805 S.E.2d 890.

In this case, Anderson received a complete transcript after reconstruction, and the narrative parts which were recreated were sufficiently detailed for meaningful review. Both prosecutors who tried the case testified at the reconstruction hearing,³ and their versions of what transpired at trial, which included recollections both helpful and detrimental to the State's case, were largely identical. The trial court acknowledged the accuracy of the prosecutors’ accounts of Davis's and Jordan's testimony, stating that "the Court remembers it exactly as the State stated it, except I disagree, I think, on one or two issues," explaining that, in the trial court's recollection, Jordan was "a nominal-type witness," who "didn't want to be here." Under these circumstances, Anderson was not entitled to a new trial. See, e.g., Mosley v. State , 300 Ga. 521, 524–526 (2), 796 S.E.2d 684 (2017) (concluding that Mosley was not entitled to a new trial when the State re-created the transcript of one missing day of trial based on a hearing at which three of the four witnesses called that day testified along with Mosley's trial counsel and the prosecutor).⁴

Moreover, once the State provided testimony regarding what transpired at trial, Anderson was required to provide evidence to support his argument that the record remained incomplete. He failed to do so. See Bamberg , supra, 308 Ga. at 349–50 (2), 839 S.E.2d 640. And Anderson's contention that the record could not possibly be recreated because trial counsel should not be expected to assist appellate counsel since "trial counsel cannot be made to assert his own ineffectiveness" is incorrect. Trial counsel would have been aiding in the reconstruction of the transcript, not using the transcript to demonstrate any ineffectiveness. See Bamberg , s...