SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 19, 2013
In the Court of Appeals of Georgia A12A2394. BRYANT v. THE STATE
BARNES, Presiding Judge.
Following a jury trial, Dwayne Bryant was convicted of trafficking in cocaine
and possession of a firearm during the commission of felony. He filed a motion for
new trial which the trial court denied, and he now appeals from that order. On appeal,
Bryant contends that the trial court abused its discretion by dismissing a juror after
“significant deliberations” had occurred. Following our review, and upon finding that
the trial court did not abuse its discretion in removing an ill juror, we affirm his
convictions.1
1 “The evidence will not be summarized because the general grounds were not argued.” Tanner v. State, 242 Ga. 437 (249 SE2d 238) (1978). The record reflects that at the close of evidence in Bryant’s trial on Thursday,
January 10, 2008, the jury deliberated for a short time before adjourning for the day.
The jury deliberated for a full day on Friday, January 11, after which at approximately
6:10 p.m. it inquired to the trial court via note as to “what the next step is if we cannot
reach a decision.” The trial court brought the jury in and inquired if additional
deliberation would help, and the foreperson responded in the affirmative, after which
the jury returned to the jury room. While the jury was out, Bryant requested a mistrial
on the basis that by allowing the jury to continue deliberating, a juror or jurors would
be more inclined to “give up their position and to compromise to the extent that they
would give up what they are holding out [for].” The trial court denied the motion. At
6:25 p.m., the jury notified the trial court that it would like to continue deliberating
for another hour “then decide whether to continue this evening or on Monday,” to
which the trial court responded by writing “fine” on the note. At 7:08 p.m. the jury
sent in a note informing the trial court that for “charges 1 and 2 we are unable to
reach a decision. We are able to reach a decision on charge 3. No amount of further
deliberation would change this decision.” The trial court called the jury in and gave
them an Allen charge, after which the jury continued deliberation.2 Bryant renewed
2 See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896).
2 his motion for retrial, and also objected to the Allen charge. The trial court denied his
motion and overruled the objection. At 8 p.m. the trial court received a note from the
jury that they wished to “reconvene Monday at 9:00 a. m.” The trial court called the
jury in and after inquiring as to whether any of the jurors had issues related to
reconvening on Monday, excused the jury.3
At 9:45 a.m. Monday morning, the trial court reconvened and notified the
parties that earlier that morning, the court had received a call from juror 12 that she
was at the emergency room at South Fulton Medical Center. The trial court related
that it had verified, as best it could under the Heath Insurance Portability and
Accountability Act (“HIPAA”) laws, that the juror was at the hospital, and provided
the parties with a note signed by a registered nurse at the hospital that “[juror 12] is
a patient at South Fulton Medical Center.” The trial court informed the parties that
it would allow the jury to continue deliberations with the alternate juror. Bryant
objected and again moved for a mistrial, asserting that continued deliberations after
not being able to reach a consensus were putting “undue pressure” on the jury to
3 During the proceedings, the alternate juror asked about his role during the extended deliberations, and the trial court informed him that “it’s the Court’s practice to select an alternate, so if somebody were unable to continue to deliberate for a legal cause, we would then at that point in time — I would instruct all of you as to what . . . steps we would need to take at that point.”
3 reach a verdict. Bryant also requested that the judge recess the jury until it could
determine when juror 12 would return. The trial again indicated that HIPAA laws
restricted the medical information it could acquire from the hospital, and that from
juror 12’s conversation with the court’s judicial assistant, “[the juror] had the flu and
was . . . in a bad way.”
The trial court denied Bryant’s motions, called the jury in, apprised them of the
juror’s illness, and informed the alternate that she would be seated as a member of the
jury for continued deliberations. The jury reached a unanimous verdict later that
morning.
1. Bryant contends that the trial court abused its discretion and infringed on his
right to a fair trial and to be present by dismissing the juror after “significant
deliberations” had begun. He contends that the trial court made its decision to replace
the juror without a hearing or inquiry or the presence of the State or Bryant. We do
not agree.
OCGA § 15-12-172 provides: If 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 for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.
4 As this Court has explained:
The controlling law has established a procedure for addressing the question of removal of a juror for cause: The trial court must exercise its discretion in removing a juror, and it may effect such a removal even after deliberations have begun. There must be some sound basis upon which the trial judge exercises his discretion to remove the juror. A sound basis may be one which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion.
(Citation and punctuation omitted.) Semega v. State, 302 Ga. App. 879 (691 SE2d
923) (2010).
Here, the trial court did not merely rely upon the juror’s own claim of illness,
but made an independent inquiry into the circumstances and then reported its finding
to Bryant and the State. It allowed both sides input before it determined that the juror
would be replaced with the alternate. This case differs significantly from Scott v.
State, 219 Ga. App. 798, 800 (2) (466 SE2d 678 ) (1996), relied upon by Bryant. In
that case, we granted Scott a new trial because the trial court “replaced the sick juror
with the alternate, without consulting the State or Scott. The court did not make its
5 own independent determination that the juror was in fact ill and could not complete
deliberations, which it should have done.”
We reached a different conclusion in Cleveland v. State, 218 Ga. App. 661,
663-664 (4) (463 SE2d 36) (1995). In that case, after the jury was unable to reach a
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SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 19, 2013
In the Court of Appeals of Georgia A12A2394. BRYANT v. THE STATE
BARNES, Presiding Judge.
Following a jury trial, Dwayne Bryant was convicted of trafficking in cocaine
and possession of a firearm during the commission of felony. He filed a motion for
new trial which the trial court denied, and he now appeals from that order. On appeal,
Bryant contends that the trial court abused its discretion by dismissing a juror after
“significant deliberations” had occurred. Following our review, and upon finding that
the trial court did not abuse its discretion in removing an ill juror, we affirm his
convictions.1
1 “The evidence will not be summarized because the general grounds were not argued.” Tanner v. State, 242 Ga. 437 (249 SE2d 238) (1978). The record reflects that at the close of evidence in Bryant’s trial on Thursday,
January 10, 2008, the jury deliberated for a short time before adjourning for the day.
The jury deliberated for a full day on Friday, January 11, after which at approximately
6:10 p.m. it inquired to the trial court via note as to “what the next step is if we cannot
reach a decision.” The trial court brought the jury in and inquired if additional
deliberation would help, and the foreperson responded in the affirmative, after which
the jury returned to the jury room. While the jury was out, Bryant requested a mistrial
on the basis that by allowing the jury to continue deliberating, a juror or jurors would
be more inclined to “give up their position and to compromise to the extent that they
would give up what they are holding out [for].” The trial court denied the motion. At
6:25 p.m., the jury notified the trial court that it would like to continue deliberating
for another hour “then decide whether to continue this evening or on Monday,” to
which the trial court responded by writing “fine” on the note. At 7:08 p.m. the jury
sent in a note informing the trial court that for “charges 1 and 2 we are unable to
reach a decision. We are able to reach a decision on charge 3. No amount of further
deliberation would change this decision.” The trial court called the jury in and gave
them an Allen charge, after which the jury continued deliberation.2 Bryant renewed
2 See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896).
2 his motion for retrial, and also objected to the Allen charge. The trial court denied his
motion and overruled the objection. At 8 p.m. the trial court received a note from the
jury that they wished to “reconvene Monday at 9:00 a. m.” The trial court called the
jury in and after inquiring as to whether any of the jurors had issues related to
reconvening on Monday, excused the jury.3
At 9:45 a.m. Monday morning, the trial court reconvened and notified the
parties that earlier that morning, the court had received a call from juror 12 that she
was at the emergency room at South Fulton Medical Center. The trial court related
that it had verified, as best it could under the Heath Insurance Portability and
Accountability Act (“HIPAA”) laws, that the juror was at the hospital, and provided
the parties with a note signed by a registered nurse at the hospital that “[juror 12] is
a patient at South Fulton Medical Center.” The trial court informed the parties that
it would allow the jury to continue deliberations with the alternate juror. Bryant
objected and again moved for a mistrial, asserting that continued deliberations after
not being able to reach a consensus were putting “undue pressure” on the jury to
3 During the proceedings, the alternate juror asked about his role during the extended deliberations, and the trial court informed him that “it’s the Court’s practice to select an alternate, so if somebody were unable to continue to deliberate for a legal cause, we would then at that point in time — I would instruct all of you as to what . . . steps we would need to take at that point.”
3 reach a verdict. Bryant also requested that the judge recess the jury until it could
determine when juror 12 would return. The trial again indicated that HIPAA laws
restricted the medical information it could acquire from the hospital, and that from
juror 12’s conversation with the court’s judicial assistant, “[the juror] had the flu and
was . . . in a bad way.”
The trial court denied Bryant’s motions, called the jury in, apprised them of the
juror’s illness, and informed the alternate that she would be seated as a member of the
jury for continued deliberations. The jury reached a unanimous verdict later that
morning.
1. Bryant contends that the trial court abused its discretion and infringed on his
right to a fair trial and to be present by dismissing the juror after “significant
deliberations” had begun. He contends that the trial court made its decision to replace
the juror without a hearing or inquiry or the presence of the State or Bryant. We do
not agree.
OCGA § 15-12-172 provides: If 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 for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.
4 As this Court has explained:
The controlling law has established a procedure for addressing the question of removal of a juror for cause: The trial court must exercise its discretion in removing a juror, and it may effect such a removal even after deliberations have begun. There must be some sound basis upon which the trial judge exercises his discretion to remove the juror. A sound basis may be one which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion.
(Citation and punctuation omitted.) Semega v. State, 302 Ga. App. 879 (691 SE2d
923) (2010).
Here, the trial court did not merely rely upon the juror’s own claim of illness,
but made an independent inquiry into the circumstances and then reported its finding
to Bryant and the State. It allowed both sides input before it determined that the juror
would be replaced with the alternate. This case differs significantly from Scott v.
State, 219 Ga. App. 798, 800 (2) (466 SE2d 678 ) (1996), relied upon by Bryant. In
that case, we granted Scott a new trial because the trial court “replaced the sick juror
with the alternate, without consulting the State or Scott. The court did not make its
5 own independent determination that the juror was in fact ill and could not complete
deliberations, which it should have done.”
We reached a different conclusion in Cleveland v. State, 218 Ga. App. 661,
663-664 (4) (463 SE2d 36) (1995). In that case, after the jury was unable to reach a
verdict and was given an Allen charge, one of the jurors informed the trial court that
he was concerned about a possibly cancerous growth on his ear and that an operation
was scheduled that day to remove the growth. The trial court dismissed the juror and
replaced him with the alternate over the defendants’ objections that “the system was
being manipulated to avoid a deadlock.” Id. at 664 (4). When the foreman informed
the trial court that the jury was close to a verdict, the trial court considered calling the
excused juror’s doctor to inform him that the juror would be late, but upon
considering “the legal ramifications of returning a juror after announcing he was
excused,” decided to replace the juror. Id. We found that the trial court did not abuse
its discretion under OCGA § 15-12-172, because
[a]lthough the court may not have excused [the juror] had it first inquired and discovered that a verdict might be reachable without jeopardizing the scheduled surgery, it was not an abuse to do so. Hurrying to a verdict because of anxiety about keeping an important medical appointment relating to the juror’s own health could itself infect the verdict.
6 Cleveland, 218 Ga. App. 664 (4).
The present case is more similar to Cleveland than Scott. In this case, the trial
court conducted an independent investigation into the juror’s illness and “developed
some factual support for its decision to remove the [juror] for a legally relevant
reason.” State v. Arnold, 280 Ga. 487, 489 (629 SE2d 807) (2006). The trial court did
not abuse its discretion in determining that delaying the deliberations or awaiting the
return of a sick juror could have a prejudicial effect on the outcome.
[OCGA § 15-12-172] implicitly authorizes the trial court to exercise its discretion. But 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.
Herring v. State, 224 Ga. App. 809, 811 (1) (481 SE2d 842) (1997). Here, the record
shows that the trial court made an informed exercise of its discretion and we discern
no abuse of that discretion in dismissing the juror in these circumstances.
2. The Supreme Court of Georgia has held that a trial court commits error when
it communicates with a jury in the absence of the defendant or his counsel because
7 “a defendant on trial must be present when the court takes any action materially
affecting his case.” (Citations omitted.) Burtts v. State, 269 Ga. 402, 403 (3) (499
SE2d 326) (1998). Although Bryant appears to also contend that he was absent from
the deliberations when the juror was dismissed and replaced with an alternate, the
record reflects that Bryant’s attorney participated in the discussion. While the record
does not reflect whether Byant himself was either absent or present,
the absence of this information . . . does not prove [Bryant] was not in the courtroom at the time discussions were had about the [ill] juror. We must apply the presumption of regularity and conclude that the trial court conducted the trial properly by making sure appellant was present when necessary.
Milinavicius v. State, 290 Ga. 374, 377 (3) (721 SE2d 843) (2012).
Judgment affirmed. McFadden and McMillian, JJ., concur.