Darren Rayton Mills, Jr. v. State

• Court: Court of Appeals of Georgia
• Decided: May 22, 2025
• Docket: A25A0142
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., MARKLE and PADGETT, JJ.

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. https://www.gaappeals.us/rules

May 22, 2025

In the Court of Appeals of Georgia A25A0142. MILLS, JR. v. THE STATE.

PADGETT, Judge.

After a jury trial, Darren Rayton Mills, Jr. was convicted of criminal attempt to

commit murder and other crimes. After the trial, Mills learned that one of the jurors

did not disclose that she was a convicted felon. Mills moved for a new trial on the basis

that his constitutional right to trial by jury was violated because one of the

participating jurors was a convicted felon whose rights had not been restored. The trial

court denied the motion. Mills appeals, and we reverse.1

“Where, as here, the trial court’s denial of the motion for new trial involves a

mixed question of law and fact, we review de novo the trial court’s decision as to any

1 This Court held oral argument in this case on December 18, 2024. Video of the oral argument is available on the Court’s website. questions of law, while applying the clearly erroneous standard of review to any factual

findings made by that court, and we defer to the trial court’s credibility

determinations.” Sarat-Vasquez v. State, 350 Ga. App. 322, 323 (1) (829 SE2d 394)

(2019) (cleaned up).

So viewed, the record shows that in 2015, the victim, H. P., was robbed and shot

several times. Related to that incident, Mills and co-defendants Dominque Carter and

Quatez White were indicted in 2016 on two counts of participation in criminal street

gang activity, criminal attempt to commit murder, aggravated assault with a deadly

weapon, aggravated battery, armed robbery, hijacking a motor vehicle, arson in the

second degree, and possession of a firearm during the commission of a felony.2 Mills

pleaded not guilty to all counts, and the case went to trial. During jury selection, the

trial judge asked the panel of prospective jurors: “[i]s there anyone on our panel who

has been convicted of a felony and has not had their rights restored?” There was no

response from the members of the panel, including potential juror C. L. L. C. L. L.

was selected for the jury and participated in deliberations. Ultimately, the jury –

2 Carter and White were also convicted of the same crimes as Mills and, like Mills, were acquitted of possession of a firearm during the commission of a felony. Carter and White are not parties to this appeal. 2 including C. L. L. – found Mills not guilty of possession of a firearm during the

commission of a felony and guilty on the remaining counts.

Mills filed a timely motion for new trial. After discovering that C. L. L. was a

convicted felon whose rights had not been restored, Mills amended his motion to

include arguments that C. L. L.’s presence on the jury deprived him of a fair trial. In

support of his motion, Mills submitted evidence that this juror pleaded guilty in 1995

to possession of cocaine and was sentenced under the First Offender Act, OCGA §

42-8-60, that prior to completion of her first offender sentence, she violated her

probation by possessing cocaine, and that her first offender status was revoked in 1997.

At the motion for new trial hearing, the juror testified that she was never pardoned for

her crime. In its order denying the motion, the trial court found that C. L. L.’s crime

was not “so recent or infamous to have infected the proceedings” and that Mills

offered no evidence demonstrating that his trial or its result was unfair. Mills appeals.

1. First, Mills argues that the trial court erred in denying the motion for new

trial based on the fact that a felon juror participated in the deliberations and verdict

in violation of the Georgia Constitution of 1983 and OCGA § 15-12-40. We agree.

3 The Georgia Constitution provides that “[t]he right to trial by jury shall remain

inviolate . . . .” Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a). The Georgia Constitution

also states that “[a] trial jury shall consist of 12 persons . . . .” Ga. Const. of 1983, Art.

I, Sec. I, Par. XI (b). This right to a 12-person jury originates in the common law,

“[a]nd as at common law . . . so likewise it is essential that one accused of crime shall

in Georgia be accorded a trial before twelve [persons], upright and intelligent, if the

right [to a jury trial] is to be preserved inviolate.” Williams v. State, 12 Ga. App. 337,

339 (77 SE 189) (1913); Ga. R.R. v. Cole, 73 Ga. 713, 715 (1885) (“To constitute a

proper jury, there must be a jury of twelve bonos et legales homines omni exceptione

majores.”).

At common law, convicted felons were generally disqualified from serving on

a jury in a criminal case. Keever v. Dellinger, 291 Ga. 860, 862 (5) (734 SE2d 874)

(2012). Their disqualification was not necessarily permanent, however, “because it

has sometimes happened that men who afterward became model citizens had in their

youth committed offenses which were fully expiated or atoned for by a subsequent

course of exemplary rectitude.” Id. (cleaned up) (quoting Bennett v. State, 262 Ga.

149, 150 (1) (c) (414 SE2d 218) (1992)). Nonetheless, where disqualification was

4 appropriate at common law, the remedy for conducting a trial with a convicted felon

was to grant a new trial because the whole trial was void. Williams, 12 Ga. App. at 338

(guilty plea to simple larceny “disqualified the . . . juror, and his presence on the jury

was illegal, and reduced the number of competent jurors to eleven, thereby depriving

the defendant of a full jury and making his conviction illegal”). On this point, the

Supreme Court of Georgia was clear: “One reason why a new trial is demanded where

there is no doubt as to disqualification of a juror . . . is that the verdict is illegal and void.”

Id. at 340 (citation and punctuation omitted) (emphasis supplied).

Our legislature codified and further clarified convicted felons’ ineligibility to

serve as trial jurors with its enactment in 2012 of OCGA § 15-12-40, which states

unequivocally that “[a]ny person who has been convicted of a felony in a state or

federal court who has not had his or her civil rights restored . . . shall not be eligible

to serve as a trial juror.” The plain language of OCGA § 15-12-40 is unambiguous that

a convicted felon shall not be eligible to serve on a jury, and thus the legislature made

the disqualification permanent, absent some restoration of his or her civil rights.

OCGA § 15-12-40, is silent, however, about what to do if a trial is conducted with a

convicted felon serving on the jury. Thus, the proper remedy is now, as it was under

5 common law, to grant a new trial because the whole trial was void. Williams, 12 Ga.

App. at 338.

We are not persuaded by the State’s arguments against this result. The State

cites to Bennett v. State, 262 Ga. 149, 150-151 (1) (c) (414 SE2d 218) (1992), a case

decided a decade before enactment of OCGA § 15-12-40, where our Supreme Court

held that a new trial was not warranted where a member of the juror had been a

convicted felon. In Bennett, the Supreme Court noted that at common law, the

disqualification was “not necessarily permanent” because the juror’s prior felony

conviction for “traffic-offense habitual-violator” occurred “several years” before the

trial. Id. at 150 (1) (c). Thus, the Supreme Court in Bennett made its determination

before and without the benefit of OCGA § 15-12-40’s absolute prohibition of a

convicted felon serving on a jury. And in Bennett, unlike this case, the defense learned

of the possible disqualification of the juror during trial and did not immediately raise

the issue until after trial. Id. at 150-151 (1) (c). We likewise are not persuaded by the

State’s reliance on the Supreme Court’s decision in Keever v. Dellinger, 291 Ga. 860,

862 (5) (734 SE2d 874) (2012), where the Supreme Court held that a party was not

entitled to a new trial where one of the jurors was a convicted felon. As the Supreme

6 Court noted, Keever was a civil case, and “[t]he parties . . . pointed [the Supreme

Court] to no precedent establishing a similar common law rule in civil matters such

as this one.” Id. at 862 (5) n.4. And again, the trial in Keever also preceded the

effective date of OCGA § 15-12-40 and its unambiguous declaration that convicted

felons are ineligible to serve as trial jurors. Id. at 862 (5) n.3.

The State next argues that because the legislature in 1995 added a prospective

juror’s felony conviction to the statutory list of challenges that a party may make to

a juror for cause,3 the challenge to a juror based on his or her prior felony conviction

changed from being propter delictum, permitting the challenge to come after the trial,

to being propter defectum, requiring the challenge to come before the verdict is

rendered. We again disagree.

3 OCGA § 15-12-163 (b) states that: The state or the accused may make any of the following objections to the juror: (1) That the juror is not a citizen, resident in the county; (2) That the juror is under 18 years of age; (3) That the juror is incompetent to serve because of mental illness or intellectual disability, or that the juror is intoxicated; (4) That the juror is so near of kin to the prosecutor, the accused, or the victim as to disqualify the juror by law from serving on the jury; (5) That the juror has been convicted of a felony in a federal court or any court of a state of the United States and the juror’s civil rights have not been restored; or (6) That the juror is unable to communicate in the English language. 7 In Wright v. Davis, 184 Ga. 846, 852 (193 SE 757) (1937), our Supreme Court

first characterized challenges to juror qualifications who have committed felonies as

propter delictum as opposed to propter defectum. “Challenges to the poll, the individual

juror, are either peremptory or for cause. Challenges for cause are made in one of two

forms — for principal cause or for favor. Principal cause is disqualification based on

the grounds enumerated in OCGA § 15-12-163][,]” Clay v. State, 322 Ga. App. 97, 100

(1) (744 SE2d 91) (2013), including that the juror “has been convicted of a felony in

a federal court or any court of a state of the United States and the juror’s civil rights

have not been restored[.]” OCGA § 15-12-163 (b) (5). “A challenge to the poll for

principal cause is based on alleged facts from which, if proved to be true, the juror is

conclusively presumed to be incapacitated to serve.” Hagans v. State, 77 Ga. App. 513,

514 (48 SE2d 700) (1948).

A challenge propter defectum is made when the potential juror is “wanting in

some qualification required by law,” such as residence or county. Allen v. State, 299

Ga. App. 201, 202 (1) (a) (683 SE2d 343) (2009) (quoting Gormley v. Laramore, 40 Ga.

253, 254 (1869)). A challenge propter defectum is a challenge made when, but for the

lack of qualification, the potential juror is otherwise “just as good” as any other

8 potential juror. Id. (quoting Gormley, 40 Ga. at 254). “Georgia courts have

consistently held that objections to the manner in which a jury is chosen, when such

objections do not relate to the favor or bias of the juror but rather to his or her

qualifications to serve on a jury (such as being on the jury commissioner’s list or

properly summoned), come too late when raised after the verdict is rendered, even if

the defect was not discovered until after the verdict.” Allen, 299 Ga. App. at 203 (1)

(a). “The idea is that a juror incompetent propter defectum is made specially competent

by the act of the parties in allowing him to serve without challenge, and a verdict will

not be set aside for such cause.” Id. (citation and punctuation omitted). “Even if the

parties were unaware of the defect, the theory of the law is that such a defect could

have been discovered before the juror was accepted, as well as after, with exercise of

proper diligence, and . . . that a juror so disqualified would be as fair a juror to one side

as to the other.” Id. (citation and punctuation omitted).

In contrast, our Supreme Court has stated that a challenge propter delictum “is

materially different from an objection propter defectum.” Brady v. State, 199 Ga. 566,

572 (34 SE2d 849) (1945). A challenge propter delictum is a challenge on account of a

crime of moral turpitude committed by the juror, which disqualifies the juror. Mitchell

9 v. State, 69 Ga. App. 771, 777-779 (26 SE2d 663) (1943). Whereas a challenge propter

defectum is a challenge made when “[i]t does not appear but that the man is just as

good a juryman for the party objecting as any other,” Allen, 299 Ga. App. at 202 (1)

(a) (quoting Gormley, 40 Ga. at 254), a challenge propter delictum is made when a

defendant is “deprived of his right to have a jury composed entirely of upright men.”

Wright, 184 Ga. at 853. And, in such cases, we do not “speculate on whether the

accused suffered actual injury, when so vital a right has been violated. There are some

conditions from which injury will be presumed.” Id. Thus, we reject the State’s

contention that “when the Legislature added statutes regarding the ineligibility of

convicted felons to serve, it abrogated the common law such that a challenge based on

a felony conviction should no longer be considered one propter delictum, but one

propter defectum.”

We also reject the State’s argument that propter delictum challenges apply only

to jurors who have been convicted of “certain ‘infamous’ felonies,” as opposed to

“not so ‘infamous’” felonies. First, the plain language of OCGA § 15-12-40 is

unambiguous and encompassing in its reference to “a felony,” without any distinction

or subdividing between a felony that is “infamous” and one that is “not infamous.”

10 Second, as our Supreme Court has made clear, “it would seem that any crime

designated as a felony and punishable by imprisonment would be a crime involving

moral turpitude within the meaning of the law. Felonies are infamous.” Lewis v. State,

243 Ga. 443, 445 (254 SE2d 830) (1979); Rehberger v. State, 269 Ga. 576, 576 (1) (502

SE2d 222) (1998) (“In Georgia, all felonies are crimes involving moral turpitude.”).

Finally, the State argues that the Supreme Court was wrong when it decided for

the first time in Wright that challenges to juror qualifications who have committed

felonies were challenges propter delictum. But this Court “has no authority to overrule

or modify a decision of the Supreme Court of Georgia as ‘the decisions of the

Supreme Court (of Georgia) shall bind all other courts as precedents.’” Etkind v.

Suarez, 234 Ga. App. 108, 108 ( 505 SE2d 831) (1998) (quoting Ga. Const.1983, Art.

VI, Sec. VI, Par. VI). Accordingly, we reverse the trial court’s denial of Mills’ motion

for new trial.

11 2. Having reversed the judgments of conviction and determined that Mills is

entitled to a new trial, we need not address his additional claims of error as they are

moot or unlikely to recur on retrial. Willingham v. State, 279 Ga. 886, 889 (3) (622

SE2d 343) (2005).

Judgment reversed. Doyle, P. J., and Markle, J., concur.