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Smith v. State2/6/2004
ict on a different count. A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury's decision to convict on certain counts and acquit on other counts.
FN5. Milam v. State, 255 Ga. 560, 562(2), 341 S.E.2d 216 (1986).
Id. at 807-808, 586 S.E.2d 709. Smith's argument is meritless.
3. Smith next contends that the trial court erred in giving certain additional instructions to the jury in response to a question from *758 them. During the deliberations, the jury sent the trial court a note which read: "If there was no probable cause to pull him over can Count I be thrown out. Comment: Appears to be unresolved conflicts of testimony between Officer Abbott and Mr. Smith." The trial court brought the jury back in and answered their question by saying, "First I will tell you that the Court cannot answer that question for you and I will say further to you that the issue of probable cause is not for you to decide." Smith has no complaint about the first part of the trial court's response, but contends that, in telling the jury that the issue of probable cause was not for it to decide, the trial court gave "the jury the impermissible impression that the issue of probable cause had already been decided and it was decided adversely to the defendant," and also implied that the defendant was guilty of Count 1.
As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. When the jury requests more instructions upon a particular phase of the case, the trial court is under a duty to instruct them in a plain, clear manner so as to enlighten rather than confuse them. The court may respond to a jury's question by repeating charges which are legally sufficient and not misleading. But it is not necessarily error for the court to respond with a direct answer. The critical issue is whether the charge taken as a whole presents the issues in a way not likely to confuse a jury of average intelligence.
(Citations, punctuation and footnotes omitted.) McElroy v. State. [FN6]
FN6. McElroy v. State, 244 Ga.App. 500, 501-502(1)(a), 536 S.E.2d 188 (2000).
The question of probable cause "had been resolved and ruled on in the motion to suppress hearing; in such a hearing, the judge sits as the trier of fact." Sims v. State. [FN7] Thus, the trial court's statement to the jury that it was not for them to decide the issue of probable cause was a correct one and, as a correct statement regarding the determination of probable cause, could not leave the jury with an impermissible impression. In addition, the trial court, in charging the jury, had instructed it that none of its comments or rulings were "intended to express any opinion either upon the facts of the case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant." In light of the charge as a whole, therefore, it does not appear that the trial court's response to the jury had *759 "the net effect of implying that the defendant was guilty of Count One."
FN7. Sims v. State, 165 Ga.App. 881, 884(6), 303 S.E.2d 60 (1983).
Judgment affirmed.
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