Marshall v. State

361 Ga.App. 357

864 S.E.2d 469

MARSHALL

v.The STATE.

A21A0948

Court of Appeals of Georgia.

October 7, 2021

Micah Jay Gates, for Appellant.

Susan Franklin, Herbert McIntosh Poston Jr., for Appellee.

Dillard, Presiding Judge.

McLance Marshall appeals his convictions for numerous child-sex offenses and making false statements, arguing that the trial court erred in giving coercive jury instructions (including an Allen charge),¹ and by failing to grant him a general demurrer as to one of the charged offenses. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,² the record shows that during the summer of 2005, R. H.—a 14-year-old boy—was an active member of his church and the local Boys and Girls Club. Among other things, R. H. was involved in the church's youth choir while Marshall was the choir director.³ And during that time, R. H. was with Marshall "almost every day" without telling his parents, even though his father admonished him to stay away from Marshall.

R. H. had a troubled past, including being a gang member; but Marshall helped him to leave the gang. Marshall also encouraged R. H. not to use drugs, and they often discussed "religious matters." Additionally, Marshall bought R. H. "all sorts of stuff," including a BB gun, fireworks, a fishing pole, food, and candy. R. H. was also allowed to drive Marshall's car, even though he was too young to have a driver's license. And at some point, R. H.’s father asked him if "anything was going on" with Marshall; but R. H. chose not to disclose the relationship because he liked Marshall and did not want anyone to get hurt.

As the relationship progressed, Marshall began showing R. H. pornography. And during one of the films, Marshall asked if he could stick his penis in R. H.’s anus. R. H. refused at first, but Marshall begged him to change his mind, and eventually, he did. Afterwards, he asked R. H. to pray with him in a "praying section" that he had on his floor. And after this first sexual incident, Marshall continued abusing R. H. in the same manner, including during a trip out of town when they stayed in two different hotels together. Marshall also took R. H. to the Boys and Girls Club when it was closed and engaged in sexual acts with him there, including placing his penis inside R. H.’s mouth and having R. H. touch his penis to help him masturbate.

One night, R. H.’s father dropped him off at a local community center and advised that he would pick him up around 9:00 p.m.; but R. H. was not there when his father returned because he had already left with Marshall. Later that night, Marshall drove R. H. past his parents’ house because Marshall wanted to see if R. H.’s father was looking for him. And when they did so, R. H.’s father jumped in his car and chased after them; but they were going "pretty fast [and] trying to get away." Eventually, after the chase ended, R. H. went home, had an argument with his father, and ran away. R. H. then made his way to Marshall's house, and they engaged in anal sex once again.

R. H.’s father called the police to report that his son was missing. And as part of their efforts to find R. H., police detectives went to Marshall's home. After answering the door, Marshall said R. H. was not there. Even so, the detectives asked if they could search the home, and Marshall responded that he needed permission from the homeowner. One of the detectives then called the homeowner, and she gave them permission to search the home. At some point during the search, Marshall asked R. H. to tell the detectives that he was there without his knowledge, but R. H. responded that he could not do that. Eventually, the detectives located R. H. hiding in the closet and wearing nothing but underwear.

Following the search, Marshall was arrested for obstruction of an officer, contributing to the delinquency of a minor, and interference with custody. Although Marshall resisted arrest at first, the detectives were eventually able to place him in handcuffs. Thereafter, Marshall was interviewed by police detectives, and he eventually admitted that he had been lying to them and disclosed his sexual relationship with R. H. Indeed, Marshall told the detectives about the specific sexual acts he engaged in with R. H. and that it had been going on for two months.⁴ Marshall also blamed R. H. for his actions, telling officers that it continued for so long because R. H. "kept coming on to him."

Thereafter, Marshall was charged, via special presentment, with five counts of aggravated child molestation, four counts of child molestation, four counts of enticing a child for indecent purposes, and four counts of making false statements to police. Following a jury trial, the trial court granted Marshall's motion for a directed verdict as to one of the enticing-a-child-for-indecent-purposes charges (Count 13), but he was convicted of the remaining counts. Marshall then filed a motion for a new trial, which was denied after a hearing on the matter. This appeal follows.

1. Marshall first argues that the trial court gave coercive jury instructions—including an Allen charge—after being informed several times that the jury could not reach a verdict because one juror disagreed with the others. We disagree.

When a jury reports difficulty in reaching a unanimous verdict, the decision of whether to give an Allen charge is "committed to the sound discretion of the trial court, and we review that decision only for an abuse of discretion."⁵ Indeed, the determination of whether a jury is "hopelessly deadlocked is a sensitive one best made by the trial court that has observed the trial and the jury ...."⁶ So, bearing this deferential standard of review in mind, we turn to the specific circumstances of this case.

Following the close of evidence, jury deliberations began at 2:40 p.m. on the final day of trial and continued until 5:50 p.m., when the jury sent a note to the court, which stated, "[w]e have not been able to arrive at a unanimous decision on all counts." At this point, the trial court allowed the jury to recess for the night but instructed it to continue its deliberations the following day. Deliberations then resumed the next morning at 10:11 a.m., but less than an hour later, the jury submitted another question to the court, asking "Is it permissible (sic) for a juror to remain undecided[?]" And in response, the court advised the jury that its verdict must be unanimous. Fifteen minutes later, the jury sent another note to the court, stating, "[w]e cannot reach an agreement of guilt or innocence on Counts 1-12, 15, [and] 16." But again, the court instructed the jurors to "[p]lease continue your deliberations[,]" and after a lunch break, the jury did so at 1:00 p.m.

But only 30 minutes later, the jury sent another note to the judge, stating "[w]e have been unable to reach a unanimous decision on Count[s] 1-9, 15, [and] 16." Nevertheless, the trial court again instructed the jurors to continue their deliberations, which they did. Even so, just an hour later, the jury sent yet another note to the court, stating "[a] member of the jury has stated that further participation in the deliberation process will not be fruitful and that no argument can be given that will change her mind. Said jurist has not provided arguments sufficient to persuade the others." Then, outside the presence of the jury, Marshall's attorney stated, "[l]ooking at the nature of this note, they're obviously deadlocked." The trial court disagreed, stating, "[w]ell that's not my assessment of it[,]" and defense counsel preemptively objected to giving the jury an Allen charge. Nevertheless, the trial court overruled the objection and gave the following Allen charge:

Ladies and gentlemen, you have now been deliberating upon this case for a considerable period of time and the Court deems it proper to advise you further in regard to the desirability of agreement, if possible.

The case has been exhaustively and carefully tried by both sides and has been submitted to you for decision and verdict if possible and not for disagreement. It is the law that a unanimous verdict is required. While this verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach an agreement, it is, nevertheless necessary for all the jurors to examine the issues and questions submitted to them with candor and fairness with a proper regard for and deference to the opinion of each other. A proper regard for the judgment of others will greatly aid us in forming our own judgment. Each juror should listen to the arguments of other jurors with a disposition to be convinced by them. If the members of the jury differ in their view of the evidence the difference of opinion should cause them all to scrutinize the evidence more closely and to re-examine the grounds of their opinion.

Your duty is to decide the issues that have been submitted to you if you can conscientiously do so. In conferring you should lay aside all mere pride of opinion and should bear in mind that the jury room is no place for taking up and maintaining in a spirit of controversy either side of a cause. You should bear in mind at all times that as jurors you should not be advocates for either side. You should keep in mind the truth as it appears from the evidence examined in the light of the instructions of the Court. You may again retire to your room for a reasonable time and examine your differences in the spirit of fairness and candor and try to arrive at a verdict.

As instructed, the jury resumed its deliberations at 3:04 p.m., and less than 30 minutes later, the jurors reached a unanimous verdict, finding Marshall guilty as to all counts.⁷ Marshall's counsel requested that the jury be polled to confirm that the verdict was actually unanimous. The jurors were then asked the following questions: (1) "Was that your verdict?"; (2) "Was it freely and voluntarily agreed to by you?"; and (3) "Is that still...