MELTON, Justice.
Following his conviction for murder, aggravated assault, and possession of a firearm during the commission of a crime, Montrell Sharpe appeals, contending that the trial court made numerous errors and that he received ineffective assistance of counsel.
1. In the light most favorable to the verdict, the record shows that, on November 1, 2006, Chris Holloway, Jamel Harrison, and
This evidence was sufficient to enable the jury to find Sharpe guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Sharpe contends and the State concedes that the trial court erred in sentencing Sharpe by failing to merge his conviction for the aggravated assault of Harrison into his conviction for the murder of Harrison. "Although there is no merger of these crimes as a matter of law, our review of the record establishes that the aggravated assault conviction[ ] merged into the malice murder conviction[ ] as a matter of fact." (Citation omitted.) Vergara v. State, 287 Ga. 194, 196(1)(b), 695 S.E.2d 215 (2010). As a result, the conviction and sentence for the aggravated assault of Harrison must be vacated and the case remanded to the trial court for resentencing. Id.
3. Sharpe argues that the trial court erred by denying his motion to strike Juror No. 32 for cause. During voir dire, Juror No. 32 testified that, in the past, he had spent two years teaching police departments how to perform underwater searches for bodies and evidence. When Juror No. 32 was asked if this would bias him in favor of police officers, he responded: "Probably I would (inaudible) their words more than anybody else." Upon further questioning, however, Juror No. 32 stated unequivocally that he could view all of the evidence fairly and impartially. In these situations,
Foster v. State, 248 Ga. 409, 411(3), 283 S.E.2d 873 (1981).
4. Sharpe contends that the trial court erred by admitting an array of photos, including his own, that he contends were obviously mug shots or booking photographs relating to a prior crime. More specifically, Sharpe argues that the use of his mug shot in the photo array improperly placed his character into evidence. The record shows that, on or about November 2, 2006, Holloway was shown a photo array from which he identified Sharpe. Based on our review of the photo array, it does appear that the photographs are mug shots. Sharpe was not arrested until January 7, 2007; therefore, the mug shot used in the photo array could not have been related to the crime for which he was currently being tried and forms the basis of this appeal. To the contrary, the mug shot would have to be related to a prior crime. In general, mug shots of a defendant taken after arrest with regard to the crime for which he is currently being prosecuted do not prejudice the defendant. See, e.g., Rittenhouse
5. Sharpe contends that the trial court gave the jury an unrequested and inappropriate Allen charge. The record shows that, after two hours of deliberation, the jury foreman informed the court that the jurors were split and could not reach a verdict. The foreman further indicated that the jurors were displeased with the presentation of evidence from both the State and the defense. The trial court responded to the foreman's statement by giving the jury what appeared to be, in essence, an abbreviated Allen charge. The trial court instructed:
In Burchette v. State, 278 Ga. 1, 596 S.E.2d 162 (2004), this Court disapproved of language instructing jurors that a case "must be decided" by some jury. We determined, however, that the inclusion of such language would not create reversible error where that language was only a small part of an otherwise fair and non-coercive charge. Id. at 6, 596 S.E.2d 162. In such cases, the offending language does not cause the charge to become so "coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors." (Citation and punctuation omitted.) Luker v. State, 291 Ga.App. 434, 436(2), 662 S.E.2d 240 (2008). Moreover, even in situations where the questionable language is more prominent, other factors, such as the length of deliberations following the Allen charge and the results of polling the jury on the verdict, may be considered to determine whether a given charge is unduly coercive or not.
Lowery v. State, 282 Ga. 68, 72(4)(a), 646 S.E.2d 67 (2007). Based on these factors, the record in this case would not support a finding that the trial court's Allen charge improperly coerced the jury, as the jurors deliberated for a considerable time after the instruction was given and reaffirmed their verdict when polled. There was no reversible error here. Id.
6. Sharpe contends that the trial court erred by denying his request to
7. Sharpe argues that the trial court erred in two aspects regarding the removal and replacement of Juror Hamilton with Juror Hall: (a) the trial court erred by failing to ask the remaining jurors whether they had been adversely affected by Juror Hamilton and (b) the trial court erred by failing to instruct the reconstituted jury that deliberations should begin anew.
The transcript reveals that, on the morning after deliberations had begun and an Allen charge had been given, the trial court was notified by Juror Hamilton that she had just discovered that her daughter-in-law was close friends with Sharpe. During questioning by defense counsel, Juror Hamilton explained that she had told the other jurors only that she probably would not be with them any longer because she had a family member involved in the case. Juror Hamilton stated that none of the other jurors asked her any questions about the situation or her statement. The trial court excused Juror Hamilton from any further service in the matter and denied Sharpe's subsequent motion for mistrial. The trial court then had the jury brought in and explained that it had replaced Juror Hamilton with alternate Juror Hall. The trial court further told the jurors that it wanted them to deliberate more on the case and that it was going to provide them with a copy of the jury instructions.
The trial court stated:
Sharpe now contends that this instruction was deficient.
With regard to Sharpe's contention that the trial court erred by failing to ask the remaining jurors whether they had been adversely affected by Juror Hamilton, the transcript does not indicate that the trial court erred. As an initial matter, Sharpe did not request that the trial court question the remaining jurors, and, in any event, Juror Hamilton's responses clearly indicate that her statement to the other jurors about her conflict was exceedingly minimal and that the others had no reaction to it. Under these circumstances, the trial court did not err by not questioning the remaining jurors about Juror Hamilton.
Sharpe's second contention that the trial court erred by failing to instruct the jurors to start deliberations anew is unsupported by the transcript. As set forth above, that is exactly what the trial court, in essence, did instruct the reconstituted jury to do by bringing Juror Hall "up to speed" after making a "fresh start." Therefore, Sharpe's contentions fail.
8. Finally, Sharpe contends that trial counsel rendered ineffective assistance by failing to (1) request that the trial court examine the remaining jurors whether they had been affected by Juror Hamilton after she had been removed and (2) failing to object to the trial court's Allen charge. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As discussed above, however, there was no error on which to premise these claims of ineffective assistance. Accordingly, Sharpe's claims in
Judgment affirmed in part, vacated in part, and remanded for resentencing.
All the Justices concur.