Silliman's Papers

‘What is aggravated assault?’
By Daniel Silliman
Clayton News Daily, Feb. 13, 2007

In the days after the trial, one juror had a question.

After a week-long trial — sitting with 11 other people in the jury box in Clayton County Superior Court and listening to four defense attorneys, a prosecuting attorney and a string of family members, police officers and experts — she still had a question.

She didn’t bring up the question when the judge read the law, on a Thursday afternoon in May. It did come up briefly, however, during jury deliberations. The jury wrote a note asking the judge. It was the last thing the jury did before court was dismissed for the night.

The question: What is aggravated assault?

Sitting on the witness stand on Thursday, more than seven months after the trial ended and two men were each found guilty of two counts of aggravated assault, an appeals attorney asked former juror Stacey Sullivan about that question.

“Did you understand what that charge meant?” asked Herbert Adams, Jr., during a hearing on a motion for the retrial of the two men convicted of shooting and killing 4-year-old Travon Wilson.

“I didn’t fully understand,” Sullivan said.

“If you had fully understood, would you have voted differently?” Adams pressed.

Sullivan chewed gum. She has streaked blonde hair. She wore royal blue hospital scrubs and hoop earring and she didn’t want to be there, on the stand.

“It may have been different,” she said.

Sullivan was one of a few jurors from the Wilson murder trial who went to the defense attorney’s office, the week after the verdict, and asked the question.

Xavious Cordera Taylor, 18, and Christopher Allen Emmanuel, 19, were each found guilty of two counts of aggravated assault in connection with the child’s death. Two other men were found not guilty. Eleven others pleaded to lesser sentences for their parts.

Wilson was shot while riding his red bicycle, a birthday present, in the park in Riverdale in 2004. According to police and prosecutors, two gangs met at the park in 2004 to fight. The Hit Squad gang, including Taylor, and the Southside Mafia gang, including Emmanuel, met by arrangement around 10 p.m. that spring.

Taylor was sentenced to 35 years. Emmanuel, who admitted to firing an SKS assault rifle in the park the night Wilson was killed, was sentenced to 40 years.

The jurors wrote out the question about the definition of aggravated assault and gave it to a bailiff to give to the judge, after a few hours of deliberations.

According to state law, aggravated assault is defined as an assault with “an intent to murder, to rape or rob,” an assault with “a deadly weapon,” or an assault with “any object when used offensively against a person is likely to or actually does result in bodily injury.”

The judge received a second note written on lined yellow paper before the jury went home for the night telling him to disregard the previous question.

“The court has a duty, a legal duty, to answer their question,” Adams said during last week’s hearing on a motion to impeach the verdict and retry the case.

In the more than 2,000 pages of trial transcripts, the question comes at the end of the ninth volume. According to Judge Matthew Simmons, he told the four defense attorneys the next morning that the question had been withdrawn. None of them objected.

A few days after the trial, Sullivan and other jury members went to one of the lawyers and asked why the question had never been answered. In a sworn affidavit written by Adams and signed by Sullivan, Sullivan said understanding the charge would definitely have led her to a different verdict.

Adams subpoenaed her to testify at the hearing on the motion to retry the case, hoping to use a juror’s confusion to undermine the jury’s verdict.

A few days before the hearing, Sullivan walked into the district attorney’s office crying, saying she didn’t want to testify and she didn’t mean for her question to be a defense of Taylor and Emmanuel, said Deputy Chief Assistant District Attorney John Turner.

The motion for a retrial was routine, Turner said. The other arguments in the hearing — including the argument that part of Riverdale might not be in Clayton County so maybe the defendants were tried in the wrong jurisdiction — were routine.

The box of trial transcripts sitting on the judge’s desk, the appeals attorney calling on the defense attorney to testify for their client, the inmates wearing red jumpsuits trying to turn around to see their families sitting in the back of the mostly-empty courtroom — all of this was normal legal proceedings in the years following a long sentence.

What was unusual, in the hearing, was the juror on the witness stand.

“It’s legal garbage,” Turner said.

“That’s nonsense,” Adams said.

“According to the Georgia legal code and case law,” Turner said, “juror confusion is not grounds for impeaching a verdict. Juror misconduct would be reason for a new trial. This is not sufficient to grant a new trial. Georgia law is clear that this is unacceptable.”

On the stand, Sullivan maintained her question but hedged on the importance of the answer.

“You’re not sure that anything may have been different? Is that your testimony today?” Turner asked her.

“I’m not sure,” she said.

When asked about the trial, Sullivan told the court she didn’t remember any specifics.

Defense Attorney Katrina Breeding said she thought the hedging was enough to move for a retrial.

“That’s all we need,” she told Simmons. “A ‘maybe.’ That’s not beyond a reasonable doubt.”

Simmons, after listening to more than an hour of criticism of the way he handled the trial, denied the motion to retry. He told the lawyers that it was an aggressively tried case, and he didn’t think the four defense attorneys were sleeping through the trial, ignoring opportunities to object to the way it was tried.

“I’m going to deny the motion and you can take it up with the appeals court,” Simmons said.

Sullivan left the courthouse frowning when she was done testifying, not waiting for the judge’s ruling.

Emmanuel’s mother walked through the double doors into the hallway, sat down and wept.