FIFTH DIVISION

MCFADDEN, C. J.,

MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

March 13, 2020

In the Court of Appeals of Georgia

A19A2105. MURPHY v. THE STATE.

MCFADDEN, Chief Judge.

After cashing a counterfeit check at a bank, Samuel Earl Murphy was indicted

for third-degree forgery (OCGA § 16-9-1 (d)) and theft by taking (OCGA § 16-8-2).

On the day he was scheduled to go to trial he fled from the courthouse, and he

subsequently pled guilty to and was convicted of bail jumping (OCGA § 16-10-51

(a)). At Murphy’s later trial on the forgery and theft offenses, his trial counsel did not

object when the state presented evidence of his bail-jumping conviction. His trial

counsel also did not object when, upon receipt of a question from the jury during

deliberations, the trial court paraphrased it for counsel and did notshare its disclosure

of an eleven-to-one split in favor of conviction.
The jury found Murphy guilty on both counts. On appeal, Murphy argues that

the trial court erred in withholding from counsel the jury’s disclosure of their elevento-one split. But he has not shown that this was plain error. He also argues that his

trial counsel’s failure to object to the trial court’s handling of the jury note and his

failure to object to the admission of evidence of his bail-jumping conviction

constituted ineffective assistance of counsel. But he has not shown both deficient

performance and prejudice. So we affirm.

1. Facts.

Viewed in the light mostfavorable to the verdict, the trial evidence showed that

on May 17, 2016, Murphy cashed a check for $1545.65 at a branch of the Wells

Fargo bank. The check, which was made out to Murphy, purported to be written on

the account of a business located in Alabama. But Murphy had no connection with

the business, and the business had not written the check to Murphy or authorized it

to be cashed. Instead, it was a counterfeit check, fabricated with the business’s

account and routing numbers. Ultimately the bank reimbursed the business and bore

the loss for the check. 

2. Jury note.

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During its deliberations, the jury sent the trial court a note that stated: “11-1

guilty on both counts. At an impasse. Suggestions[?]” The trial court informed

counsel and Murphy of the note and paraphrased its contents, telling them:

I have received a note from the jury, and the information that is on the

note sends me the very clear message that they are not in agreement on

a verdict at this point in time, and they feel like even though they’ve

been deliberating a whole hour that they’re not going to be able to make

any progress, and so they have asked for suggestions. They’ve also

disclosed some other information in this note that I’m making the

decision that I’m not going to share with the lawyers or Mr. Murphy at

this point in time. I will make this note a record later in — part of the

record later in this case, but right now I’m not going to.

The trial court and counsel discussed the trial court’s intended response. After

receiving counsel’s input, the trial court then instructed the jury as follows:

Ladies and gentlemen, I have received your note. The court has

reviewed it. Just me. I’m the only one who has reviewed it at this point

in time, and I understand that you guys are having some difficulty

coming to an agreement. However, I would like to encourage you to

continue your deliberations. It is your duty to deliberate, so I would ask

you to go back and continue your deliberations. Thank you very much.

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Murphy argues that the trial court violated his right to counsel by failing to

“divulge in full” the note’s contents, specifically the eleven-to-one vote split. He did

not make this objection to the trial court below but arguesthat the trial court’s actions

constituted plain error. Assuming without deciding that plain-error review applies to

this type of challenge, Murphy “must demonstrate that the . . . error was not

affirmatively waived, was obvious beyond reasonable dispute, likely affected the

outcome of the proceedings, and seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” Hood v. State, 303 Ga. 420, 425 (2) (a) (811

SE2d 392) (2018). He has not done so, because he has not shown that this claimed

error was obvious beyond reasonable dispute.

It is true that “the failure of the trial court to inform counsel of the contents of

a jury note and to seek comment or input in the formulation of the court’s response

constitutes a violation of a defendant’s right to counsel.” Dowda v. State, 341 Ga.

App. 295, 299 (3) (799 SE2d 807) (2017) (citations and punctuation omitted;

emphasis supplied). A trial court must

have jurors’ communications submitted to the court in writing; . . . mark

the written communication as a court exhibit in the presence of counsel;

. . . afford counsel a full opportunity to suggest an appropriate response;

and . . . make counsel aware of the substance of the trial court’sintended

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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, 76 (4) (b) (ii) (646 SE2d 67) (2007).

But “the numerical division between guilt and innocence during a jury’s

deliberation is not normally available to a defendant” and a trial court may omit that

information when informing counsel of the contents of a jury note. Youmans v. State,

270 Ga. App. 832, 833 (1) (608 SE2d 300) (2004). We discern no obvious error

where, as here, the trial court communicated the substance of the note to counsel,

informed counsel of hisintended response, expressly sought comment and inputfrom

counsel, incorporated that input into the response ultimately given to the jury, and

later marked the jury note as an exhibit and put it into the record. 

Because Murphy has notshown an obvious error, he has notshown plain error.

Hood, 303 Ga. at 425 (2) (a).

3. Ineffective assistance of trial counsel.

Murphy arguesthat histrial counsel wasineffective in failing to object both to

the trial court’s handling of the jury note and to the admission of evidence of his bailjumping conviction. To prevail on this claim, he “must prove both that his counsel’s

performance was professionally deficient and that, but for the unprofessional

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performance, there is a reasonable probability that the outcome of the proceeding

would have been different. [Cit.] We need not review both elements of this test if

[Murphy]failsto prove one of them.” Stripling v. State, 304 Ga. 131, 138 (3) (b) (816

SE2d 663) (2018). See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt

2052, 80 LE2d 674) (1984). In this case, Murphy has notshown prejudice asto either

alleged deficiency.

(a) Jury note.

Murphy argues that his trial counsel was ineffective for failing to object when

the trial court paraphrased the contents of the jury note rather than reading it

verbatim. As detailed above, the trial court’s actions in response to the note were not

plain error, and

the test for harm under plain error review is equivalent to the test in

ineffective assistance of counsel cases for whether an attorney’s

[allegedly] deficient performance has resulted in prejudice of

constitutional proportions. As a result, [Murphy’s]ineffective assistance

claims based on [trial counsel’s performance in connection with the jury

note] are without merit.

Williams v. State, 304 Ga. 455, 460 (3) n.4 (818 SE2d 653) (2018) (citation and

punctuation omitted).

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(b) Bail-jumping conviction.

Murphy argues that his trial counsel was ineffective for failing to object to the

evidence that he fled the courthouse on the day he was to be tried and so was

convicted of bail-jumping. Our new Evidence Code limits the admission of evidence

of other criminal acts, see OCGA § 24-4-404 (b) (“Rule 404 (b)”), but those

limitations “do not apply to ‘intrinsic evidence.’” Hill v. State, 351 Ga. App. 58, 65

(3) (c) (830 SE2d 478) (2019) (citation and punctuation omitted). See Baughns v.

State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016) (Georgia’s prior rule

regarding the admissibility of “res gestae” evidence was “carried forward to the new

Evidence Code under the concept of ‘intrinsic facts’ evidence, as compared to

evidence of ‘extrinsic acts’ which are generally inadmissible pursuant to OCGA § 24-

4-404 (b)”). The trial court held that the evidence of Murphy’s conviction for bailjumping was admissible as intrinsic evidence. 

Murphy argues that the flight in this case does not meet the definition of

“intrinsic evidence” that Georgia has adopted from the Eleventh Circuit. Under that

definition, 

[e]vidence is admissible as intrinsic evidence when it is (1) an

uncharged offense arising from the same transaction or series of

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transactions as the charged offense; (2) necessary to complete the story

of the crime; or (3) inextricably intertwined with the evidence regarding

the charged offense. . . . [E]vidence of other acts is inextricably

intertwined with the evidence regarding the charged offense if it forms

an integral and natural part of the witness’s accounts of the

circumstances surrounding the offenses for which the defendant was

indicted.

Williams v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350 (2017) (citations and

punctuation omitted). It is arguable that Murphy’s flight does not fall within any of

those categories.

But even if we assume for purposes of argument that the evidence of Murphy’s

bail-jumping conviction was not intrinsic, and that his trial counsel performed

deficiently in failing to object to its admission on that ground, Murphy has notshown

that this alleged deficiency prejudiced him. The evidence of his guilt was

overwhelming; it showed that he cashed a check for over $1500 made out to him on

the account of a business in another state with which he had no connection.

“[B]ecause the evidence of [his] guilt was overwhelming, he has failed to show that

he was prejudiced by counsel’s alleged deficient performance. Accordingly, his claim

of ineffective assistance of counsel is without merit.” Taylor v. State, 303 Ga. 583,

585 (2) (814 SE2d 302) (2018).

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(c) Cumulative effect of alleged deficient performance.

“Although we have evaluated each of [Murphy’s] claims of ineffective

assistance of counsel separately, we also recognize that the effect of prejudice from

counsel’s deficient performance is viewed cumulatively.” Bentley v. State, 307 Ga.

1, 11 (2) (d) (834 SE2d 549) (2019) (citation and punctuation omitted). We have

considered the cumulative effect of the deficiencies assumed above and “conclude

that they do not establish a reasonable probability that the result of [Murphy’s] trial

would have been different in the absence of the deficiencies alleged.” Id.

Judgment affirmed. McMillian, P.J., and Senior Appellate Judge Herbert E.

Phipps concur.

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