Crowley v. State

728 S.E.2d 282, 315 Ga. App. 755, 2012 Fulton County D. Rep. 1623, 2012 WL 1537819, 2012 Ga. App. LEXIS 430
CourtCourt of Appeals of Georgia
DecidedMay 2, 2012
DocketA12A1191
StatusPublished
Cited by11 cases

This text of 728 S.E.2d 282 (Crowley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crowley v. State, 728 S.E.2d 282, 315 Ga. App. 755, 2012 Fulton County D. Rep. 1623, 2012 WL 1537819, 2012 Ga. App. LEXIS 430 (Ga. Ct. App. 2012).

Opinion

Ellington, Chief Judge.

A Fulton County jury found Teontre Crowley guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41 (a); aggravated assault, OCGA § 16-5-21 (a) (2) (with a deadly weapon); possession of a handgun by a person under the age of 18 years, OCGA § 16-11-132 (b); and possession of a firearm during the commission of a felony crime against another person, OCGA§ 16-11-106 (b) (1). He appeals from the denial of his motion for new trial, contending that the trial court abused its discretion when it improperly dismissed a juror, that it erred in denying his motion for mistrial that was based upon the juror’s dismissal, and that it erred in refusing to instruct the jury on robbery as a lesser included offense of armed robbery. He also contends that his convictions for armed robbery and aggravated assault should have been merged for sentencing. For the following reasons, we affirm the judgment of conviction, but vacate in part Crowley’s sentence and remand for resentencing.

1. Crowley contends that the trial court abused its discretion when it improperly dismissed a juror without a sound legal basis and that it erred in denying his motion for mistrial that was based upon the juror’s dismissal. Pursuant to OCGA § 15-12-172,

[i]f at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged/or other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

(Emphasis supplied.)

In this case, the record shows the following, undisputed facts. The prosecutor and the attorneys for Crowley and his co-defendant, Samuel Hartley, selected twelve jurors and one alternate juror from the panels, and the trial court told the selected jurors to sit in the jury box as their number was called out by the court’s case manager. After the remaining potential jurors were dismissed, the selected jurors were sworn in, and the trial court gave them initial instructions, including the specific directions that they must not speak with anyone about the case or conduct any outside investigation about the case. After the jurors were released for the day, it was discovered that only 11 jurors and the alternate had been in the jury box during the oath and instructions and that Juror No. 35 had left the courtroom instead of sitting with the rest of the selected jurors, apparently because she had not heard her number when it was called. When the [756]*756trial resumed the next morning, the trial court ruled that the trial would proceed with the 11 jurors and the alternate, noting that they had been selected by the parties and had been sworn in and given instructions the previous afternoon, and that it was going to excuse Juror No. 35. Crowley’s counsel objected and moved for a mistrial, which was denied.

As Crowley argues on appeal, while OCGA § 15-12-172 authorizes the trial court to exercise its discretion to dismiss a juror and replace him or her with an alternate,

it must be an informed exercise, since the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law. There must be some “sound” basis upon which the trial judge exercises his discretion to remove the juror. Dismissal of a juror for want of any factual support, or for a legally irrelevant reason is prejudicial.

(Citations and punctuation omitted.) Herring v. State, 224 Ga. App. 809, 811 (1) (481 SE2d 842) (1997).

In this case, however, the trial court dismissed the juror and seated the alternate juror before the parties gave their opening statements or any evidence was presented. Thus,

[t] his is not a situation where the jury was deadlocked or had begun deliberations, when the need for investigation and the possibility of harmful error are heightened. [Crowley] has not shown how he was prejudiced by the use of an alternate, since pursuant to OCGA § 15-12-169, [1] alternates are selected in the same manner and must have the same qualifications as members impaneled as the jury. The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review. Replacing the juror [in [757]*757this case] had no more effect of denying [Crowley] a qualified jury than if the juror had become ill or died. The alternate juror statute was designed to alleviate situations such as these.

(Citations and punctuation omitted.) Herring v. State, 224 Ga. App. at 811-812 (1). See also Scott v. State, 272 Ga. App. 32 (1) (611 SE2d 712) (2005) (Because the trial had not yet begun when the trial court replaced absent jurors with alternates, the defendant could not show that he was prejudiced by the trial court’s actions.).2

Accordingly, under the circumstances of this case, we find that the trial court’s replacement of Juror No. 35 with an alternate juror did not constitute reversible error.

2. Crowley argues that the trial court erred when it refused to instruct the jury on robbery3 as a lesser included offense of armed robbery.4 The evidence presented at trial, viewed in the light most favorable to the jury’s verdict,5 showed the following facts.

At around noon on May 24, 2007, the victim, an employee of the College Park Golf Course, was mowing the grass when he was approached by two teenaged boys. One of the teenagers, who was later identified as Crowley, pointed a semiautomatic handgun at the [758]*758victim and yelled at him to “give the s_t up.” Crowley kept yelling while he hit the victim on the side of the head with the handgun and fired one shot into the air. As that was going on, the second teenager, who was later identified as Hartley, took a wallet, cell phone and tool from the victim. After confirming that the victim had nothing else of value to give them, the teenagers ran away.

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Bluebook (online)
728 S.E.2d 282, 315 Ga. App. 755, 2012 Fulton County D. Rep. 1623, 2012 WL 1537819, 2012 Ga. App. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowley-v-state-gactapp-2012.