In the Supreme Court of Georgia


                                               Decided: February 16, 2015


                     S14A1370. LEEKS v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Carrie Leeks was convicted by a jury of murder and related

offenses for the July 4, 2006 stabbing death of her husband, Louis Woodall.

Appellant appeals the denial of her amended motion for new trial and the grant

of the State’s motion to supplement the record. For the reasons set forth below,

we affirm in part and vacate in part.1

      1
        On October 3, 2006, a Fulton County grand jury indicted Appellant with
malice murder, two counts of felony murder, aggravated assault with a deadly
weapon, and possession of a knife during the commission of a felony. Thereafter,
during December 3-5, 2008, Appellant was tried before a jury. On December 5, 2008,
the jury returned a verdict of guilty on two counts of felony murder, aggravated
assault with a deadly weapon, and possession of a knife during the commission of a
felony. On the same day, the court sentenced Appellant to life imprisonment on one
count of felony murder and merged the remaining counts. See discussion about
merger of counts, infra at Division (7). Appellant filed a motion for new trial on
January 5, 2009, which was amended on October 31, 2012. The State filed a motion
to supplement the trial transcript on January 8, 2013. The court held a hearing on
Appellant’s motion and the State’s motion on January 9, 2013. On March 26, 2013,
the court granted the State’s motion and denied Appellant’s motion in two separate
orders. Appellant filed a notice of appeal on April 18, 2013. The appeal was
docketed to the September 2014 term of this Court and submitted for a decision on
the briefs.
      Viewed in the light most favorable to the jury’s verdict, the evidence

adduced at trial established as follows. On July 4, 2006, Appellant and her

husband were hosting a party at their apartment when they began arguing. The

victim shoved Appellant but not very hard. Appellant picked up a knife from

a nearby table and stabbed the victim in the chest. The victim fell to the ground,

then stood up, stumbled out of the apartment, and collapsed on the apartment’s

patio. Appellant washed the knife in the sink. One of Appellant’s sisters called

911, and the dispatcher instructed her to apply pressure to the victim’s wound.

She handed the phone to Appellant so that she could treat the victim, and

Appellant told the dispatcher that an unknown male stabbed the victim. When

the ambulance arrived, Appellant rode with the victim in the ambulance to

Grady Memorial Hospital. After the ambulance departed, one of Appellant’s

sisters told police officers that Appellant had stabbed the victim. Police officers

apprehended Appellant at the hospital.        The victim died at the hospital.

According to the medical examiner, the victim died from a stab wound in his left

chest, which entered his heart. Appellant was interviewed by a detective later

that same day, and her videotaped statement from this interview was played for

the jury. In her statement, Appellant admitted repeatedly that she stabbed the

                                         2
victim.

      1. Though Appellant has not enumerated the general grounds, we find

that the evidence as summarized above was sufficient to enable a rational trier

of fact to conclude beyond a reasonable doubt that Appellant was guilty of the

crimes of which she was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt

2781, 61 LE2d 560) (1979); see also Vega v. State, 285 Ga. 32, 33 (1) (673

SE2d 223) (2009) (“‘It was for the jury to determine the credibility of the

witnesses and to resolve any conflicts or inconsistencies in the evidence.’”)

(citation omitted).

      2. Appellant argues that Judge Manis erred in granting the State’s motion

to supplement the record.2 The jury submitted five notes to Judge Glanville.

The first three notes are discussed in the trial transcript: Judge Glanville

discussed the questions with counsel, called the jury to open court, and

responded to the questions in the presence of Appellant and all counsel.

      There is no discussion in the transcript of the last two jury notes.


      2
        Judge Ural Glanville presided over Appellant’s trial and sentenced her.
Because Judge Glanville was on active military duty at the time, Senior Judge
Stephanie B. Manis held a hearing and issued rulings on Appellant's motion for a new
trial and the State's motion to supplement.
                                         3
However, both of these notes are included as exhibits in the record, showing the

time and date received by the court as well as a handwritten response by Judge

Glanville. The question and response on Jury Note 4 are as follows: “On

charges 2+3 (Felony Murder) are there lesser charges, such as manslaughter. .

. . Answer: You will have to rely upon the [] charge of the court.” The question

and response on Jury Note 5 are as follows: “We would like to see the letter Ms.

Leeks wrote to Mrs. Woodall. . . . Answer: You will have to rely upon the

evidence that was presented.”

      Because the transcript was incomplete, the State moved to supplement the

trial transcript, pursuant to OCGA § 5-6-41 (f), with the affidavit of Judge

Glanville and the testimony of the two prosecutors who tried the case, in order

to show Judge Glanville’s customary practice for responding to jury questions

and notes. Judge Manis held a hearing, at which the two prosecutors and

Appellant’s trial counsel testified about what had occurred during trial and about

Judge Glanville’s customary practice for responding to jury questions and notes.

In her order granting the State’s motion to supplement, Judge Manis found that

none of the attorneys could swear positively that Judge Glanville called them

back to court to discuss the two jury questions. She further concluded that all

                                        4
of the attorneys agreed that it was Judge Glanville’s customary practice to

inform the attorneys of a jury question, summon the parties, and solicit input as

to an appropriate response, either at a bench conference or in open court outside

the presence of the jury.

      With regard to Jury Note 4, Judge Manis found that Judge Glanville called

the attorneys back to court to discuss the note, consulted the attorneys, and

submitted a response to the jury with the concurrence of the attorneys. Judge

Manis determined that this was done at a bench conference. Judge Manis

concluded that Appellant was present in court but not at the bench for the

discussion of this jury note. She further found that Judge Glanville did not

address Jury Note 4 in open court because neither party voiced any objection to

the court’s proposed response.

      With regard to Jury Note 5, Judge Manis found that Judge Glanville called

the attorneys back to court to discuss the note, consulted the attorneys, and

submitted a response to the jury with the concurrence of the attorneys. Judge

Manis determined that this was done in open court with Appellant present.

      Finally, with regard to both jury notes, Judge Manis concluded that if the

attorneys had not agreed on a response, Judge Glanville would have

                                        5
immediately gone back on the record to permit the parties to state their

respective positions and make a ruling. Judge Manis ordered that the transcript

be amended to reflect all of these findings.

      Appellant first argues that the lack of a complete transcript hampers her

right to an appeal.

      Because it is critical that the certified trial transcript reviewed by an
      appellate court speak the truth so that the appellate court can
      conduct its review with the knowledge that the transcript accurately
      reflects what took place in the trial court, Georgia law authorizes a
      trial court to conduct a hearing when a party contends the transcript
      does not fully disclose what took place and to “resolve the
      difference so as to make the record conform to the truth.” OCGA
      § 5-6-41(f).[3]



      3
       OCGA § 5-6-41 (f) provides as follows:
      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. If anything material to either party is
      omitted from the record on appeal or is misstated therein, the parties by
      stipulation, or the trial court, either before or after the record is
      transmitted to the appellate court, on a proper suggestion or of its own
      initiative, may direct that the omission or misstatement shall be
      corrected and, if necessary, that a supplemental record shall be certified
      and transmitted by the clerk of the trial court. The trial court or the
      appellate court may at any time order the clerk of the trial court to send
      up any original papers or exhibits in the case, to be returned after final
      disposition of the appeal.
                                           6
State v. Nejad, 286 Ga. 695, 697 (1) (690 SE2d 846) (2010). In accordance with

OCGA § 5-6-41 (f), Judge Manis held a hearing and supplemented the record.

Therefore, Appellant’s argument lacks merit.

      Next, Appellant argues that Judge Manis’ findings of fact with regard to

these two jury notes are clearly erroneous because neither Judge Glanville nor

the prosecutors could absolutely recall what each jury note said or what

discussions occurred. She asserts that the testimony of the prosecutors and

defense counsel conflicted. Because there is no transcript, Appellant contends

that the presumption is Judge Glanville did not discuss the two jury questions

with counsel.

      “Where the correctness of the record is called into question the matter is

to be resolved by the trial court.” Patterson v. State, 233 Ga. 724, 731 (7) (213

SE2d 612) (1975). Judge Manis’ findings as to what transpired with regard to

the two jury notes are dispositive and not subject to our review. See Nejad, 286

Ga. at 698 (trial court’s adoption of the prosecutor’s testimony regarding the

trial proceedings, in the absence of a record, was dispositive); Smith v. State,

260 Ga. 274 (3) (393 SE2d 229) (1990) (trial court’s adoption of prosecutor’s

affidavit was dispositive, where the appellant argued that the record was unclear

                                        7
as to the charge conference and the prosecutor’s affidavit conflicted with the

affidavits of appellant’s trial counsel); see also OCGA § 5-6-41 (g) (“where for

any other reason the transcript of the proceedings is not obtainable and a

transcript of evidence and proceedings is prepared from recollection,” and the

parties are unable to agree on the correctness of such a transcript, “the decision

of the trial judge thereon shall be final and not subject to review”).4

      3. Appellant makes several arguments in support of her contention that

Judge Manis erred in denying her motion for new trial. Appellant argues that

Judge Glanville’s discussion of Jury Note 4 with counsel violated her right to

be present at a critical part of the proceeding because, although she was in the

courtroom, she was not present at the bench. Appellant contends that she was

entitled to have the jury note and the court’s response handled in open court in

her presence and for the court to obtain an affirmative waiver of her right to be

present.

      “A defendant has the constitutional right to be present at any stage of a

      4
       We note that it makes no difference that Judge Manis held the hearing on the
State’s motion to supplement the record and granted the motion, rather than Judge
Glanville who presided over Appellant’s trial. See Nejad, 286 Ga. at 700 (presiding
judge at trial recused from the case and a different judge heard the motion to
supplement and issued a ruling thereon).
                                        8
criminal proceeding that is critical to its outcome if [his or her] presence would

contribute to the fairness of the procedure.” Barrett v. State, 275 Ga. 669, 671,

(4) (571 SE2d 803) (2002) (punctuation omitted). “Under this standard, a

defendant's right to be present is not violated . . . by his involuntary absence

from the conference held by a trial court with defense and prosecuting counsel

to discuss a response to a deliberating jury's substantive inquiry.” Lowery v.

State, 282 Ga. 68, 74 (4) (b) (i) (646 SE2d 67) (2007). Judge Glanville

answered the jury’s question in the presence of, and with the acquiesce of, all

counsel, and he merely referred the jury to the charges already provided. We do

not find that Appellant could have made a meaningful contribution to the

manner in which Judge Glanville formulated his response or that Appellant’s

presence could have contributed to the fairness of the procedure. See Campbell

v. State, 292 Ga. 766 (4) (740 SE2d 115) (2013) (the right to be present is not

violated when the defendant is absent during conferences addressing legal

matters to which the defendant cannot make a meaningful contribution). Thus,

Appellant’s right to be present was not violated.

      4. Appellant argues first that Judge Glanville failed to properly charge the

jury on manslaughter because he did not inform the jury that manslaughter was

                                        9
a lesser included offense of murder and gave jury instructions that were

weighted heavily towards murder. Second, she contends that as a result, Judge

Glanville erred in responding to the jury’s question about lesser included

offenses in Jury Note 4 by telling the jury to rely on the charges previously

given because these charges were inadequate. She asserts that Judge Glanville

should have responded by recharging the jury and specifically instructing them

that manslaughter is a lesser included offense of murder.

      Judge Glanville charged the jury on manslaughter as follows:

      After consideration of all of the evidence, before you would be
      authorized to return a verdict of guilty of malice/felony murder, you
      must first determine whether mitigating evidence, if any, would
      cause the offense to be reduced to voluntary manslaughter.

The court then instructed the jury on what constituted voluntary and involuntary

manslaughter.

      Defense counsel did not object to the manslaughter charges. This failure

to object precludes appellate review “unless such portion of the jury charge

constitutes plain error which affects substantial rights of the parties.” OCGA §

17-8-58 (b). Even though no objection was raised at the trial in this case, we are

required to review the instruction for plain error because the “enumeration of


                                       10
error [has been] properly enumerated and argued on appeal.” White v. State,

291 Ga. 7 (2) (727 SE2d 109) (2012). Reversal for plain error is authorized if

the following factors are met: “the instruction was erroneous, the error was

obvious, the instruction likely affected the outcome of the proceedings, and the

error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. at 8.


      This Court does not require the trial courts to follow an exact
      formula in instructing juries so long as the charge as a whole
      ensures that the jury will consider whether evidence of provocation
      and passion might authorize a verdict of voluntary manslaughter.
      As a whole, the instruction in this case did not prevent the jury from
      fully considering voluntary manslaughter, and was adequate to
      inform the jury that before they could convict of malice or felony
      murder, they must first consider whether there was sufficient
      evidence of passion or provocation to support a conviction for
      voluntary manslaughter.

Kendrick v. State, 290 Ga. 873, 876 (3) (725 SE2d 296) (2012) (punctuation

omitted). In addition, the court gave the jury the correct statutory definitions for

voluntary and involuntary manslaughter (based on the misdemeanor offense of

reckless conduct). “A trial court does not abuse its discretion in refusing to give

a jury charge in the exact language requested when the charge given

substantially covers the correct principles of law.” Gamble v. State, 291 Ga.

                                        11
581, 582 (2) (731 SE2d 758) (2012). Accordingly, Appellant has not shown

plain error because the instructions were not erroneous.

      We now turn to Appellant’s second argument, that Judge Glanville erred

in his response to Jury Note 4 and he should have responded by recharging the

jury and specifically instructing them that manslaughter is a lesser included

offense of murder. “A trial court has a duty to recharge the jury on issues for

which the jury requests a recharge. As a general matter, however, where no

such request has been made, the need, breadth, and formation of additional jury

instructions are left to the sound discretion of the trial court.” Sharpe v. State,

288 Ga. 565, 569 (6) (707 SE2d 338) (2011) (citation and punctuation omitted).

In Jury Note 4, the jury did not ask for a recharge on manslaughter. Therefore,

given that the initial charges on manslaughter were correct, Judge Glanville’s

response to Jury Note 4 by referring the jury to the initial charges was not an

abuse of discretion. See Kimmel v. State, 261 Ga. 332 (3) (404 SE2d 436)

(1991) (court is not required to engage in a question and answer session with the

jury, and instead, repeating the charges was legally sufficient).

      5. Appellant argues that trial counsel was ineffective for failing to object

to Judge Glanville’s response to Jury Note 4. To establish ineffective assistance

                                        12
of counsel, a defendant must show that his trial counsel’s performance was

professionally deficient and that but for such deficient performance there is a

reasonable probability that the result of the trial would have been different.

Strickland v. Washington, 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674)

(1984); Wesley v. State, 286 Ga. 355 (3) (689 SE2d 280) (2010). Because we

have found that Judge Glanville’s response to Jury Note 4 was proper and

within his discretion, Appellant has not shown that counsel’s failure to object

to the response constitutes ineffective assistance of counsel. See Suah v. State,

271 Ga. 89 (2) (515 SE2d 614) (1999) (where the jury charge on voluntary

manslaughter was sufficient, the failure of trial counsel to object did not amount

to ineffective assistance of counsel).

      6. Appellant argues that the trial court erred by (1) using a verdict form

that did not allow enough space for the jury to enter a manslaughter verdict; and

(2) failing to instruct the jury on how it could return a verdict for manslaughter

on the verdict form and specify where the jury could write in verdicts for these

lesser included offenses. Appellant asserts that the trial court’s errors harmed

her by confusing the jury as to the possible verdicts and prevented the jury from

fully deliberating and considering the lesser included offense of manslaughter.

                                         13
      The trial court overruled Appellant’s objection, requesting to use a special,

rather than general, verdict form. In overruling Appellant’s objection and

outside the presence of the jury, the trial court explained that for each count of

the indictment, there were blanks for the jury to mark “Not Guilty” or “Guilty,”

and that there was sufficient space underneath each count for the jury to write

in a lesser included offense or another offense. Based on our review of the

verdict form, we reject Appellant’s contention that there was inadequate space

for the jury to find her guilty of lesser included offenses. In addition, Judge

Glanville instructed the jury on voluntary and involuntary manslaughter, and

therefore, it was not error to refuse to include voluntary or involuntary

manslaughter on the verdict form. See Buttram v. State, 280 Ga. 595, 599 (14)

(631 SE2d 642) (2006) (“It is not error to refuse to include voluntary

manslaughter on the verdict form where the court instructs the jury on voluntary

manslaughter.”).

      As for how the jury should enter the verdict on the printed form, Judge

Glanville instructed the jury as follows:

            If after considering the testimony and evidence presented to
      you, together with the charge of the court, you should find and
      believe beyond a reasonable doubt that the defendant, in Fulton

                                        14
      County, Georgia, did on or about – pardon me, ladies and
      gentlemen[] – the 4th day of July, 2006, commit the offenses as
      alleged in the indictment, then you will be authorized to find the
      defendant guilty. In that event, the form of your verdict would be:
      “We, the jury, find the defendant guilty.”

             If you do not believe that the defendant is guilty of either of
      these offenses, or if you have any reasonable doubt as to the
      defendant’s guilt, then it will be your duty to acquit the defendant;
      in which event, the form of your verdict would be: “We, the jury,
      find the defendant not guilty.”

The jurors were also instructed on how to write in a guilty verdict for a lesser

included offense on the verdict form:

            If you believe – if you do not believe beyond a reasonable
      doubt that the defendant is guilty of aggravated assault with a
      deadly weapon, but do believe beyond a reasonable doubt that the
      defendant is guilty of reckless conduct, causing harm to or
      endangering the bodily safety of another, then you will be
      authorized to find the defendant guilty of reckless conduct, and the
      form of your verdict would be – the form of your verdict in that
      event would be: “We, the jury, find the defendant guilty of reckless
      conduct, causing harm to or endangering the bodily safety of
      another.”

Judge Glanville also properly instructed the jury on the charged offenses, the

State’s burden of proof, and the presumption of innocence.

      “Where, as here, the jury was instructed properly, we presume, in the

absence of clear evidence to the contrary, that qualified jurors followed the trial


                                           15
court's instructions to consider voluntary [and involuntary] manslaughter before

finding a defendant guilty of felony murder.” White, 291 Ga. at 9. We do not

find that the preprinted verdict form along with the jury instructions would have

misled jurors of reasonable understanding. See Rucker v. State, 270 Ga. 431,

435 (5) (510 SE2d 816) (1999) (use of a jury verdict form with the words

“guilty” and “not guilty” preprinted does not amount to error “unless the form

would mislead jurors of reasonable understanding, or the trial court erroneously

instructed the jury on the presumption of innocence, the State's burden of proof,

the possible verdicts that could be returned, or how the verdict should be entered

on the printed form”).

      7. Finally, although not raised by either party, we note an error with

respect to the merger of certain counts for judgment and sentencing.

Where neither party properly raises and argues a merger issue, this Court
has no duty to scour the record searching for merger issues. However, if
we notice a merger issue in a direct appeal, as we have here, we regularly
resolve that issue, even where [it] was not raised in the trial court and is
not enumerated as error on appeal.

Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014) (punctuation and

citation omitted).

      The jury found Appellant guilty of felony murder predicated on

                                           16
aggravated assault, felony murder predicated on possession of a knife during the

commission of a felony, aggravated assault, and possession of a knife during the

commission of aggravated assault. Judge Glanville sentenced Appellant to life

imprisonment on the felony murder count predicated on aggravated assault. The

court then merged all remaining counts. However, the second felony murder

count predicated on possession of a knife during the commission of a felony was

vacated by operation of law because the felony murder convictions involved the

same victim. Cowart v. State, 294 Ga. 333 (2) (751 SE2d 399) (2013);

McClellan v. State, 274 Ga. 819 (1) (a) (561 SE2d 82) (2002). As for the

underlying felonies, the aggravated assault felony merged into the felony murder

charge for which Appellant was sentenced. Green v. State, 283 Ga. 126, 130 (2)

(657 SE2d 221) (2008) (“When a defendant is convicted of felony murder and

is also separately convicted of the felony that served as the underlying felony

for the felony murder conviction, the conviction for the underlying felony

merges into the felony murder conviction.”). Because the second felony murder

charge was vacated by operation of law, the underlying felony of possession

could not have merged into the second felony murder count. Malcolm v. State,

263 Ga. 369 (5) (434 SE2d 479) (1993) (once a felony murder count has been

                                          17
vacated, the underlying felony cannot merge into the felony murder count).

Instead, Appellant should have been sentenced for the separate count of

possession of a knife during the commission of the felony of aggravated assault.

See OCGA § 16-11-106 (b) (1) and (e); Hawkins v. State, 262 Ga. 193 (3) (a)

(415 SE2d 636) (1992). Accordingly, Appellant’s sentence is void and we

remand for resentencing.

      Judgment affirmed in part and vacated in part and case remanded for

resentencing. All the Justices concur.




                                          18
