Arnold v. State, No. A05A0222.

• Decision Date: 07 July 2005
• Docket Number: No. A05A0222.
• Parties: ARNOLD v. The STATE.
• Court: Georgia Court of Appeals

274 Ga. App. 187

617 S.E.2d 169

ARNOLD v. The STATE.

No. A05A0222.

Court of Appeals of Georgia.

July 7, 2005.

COPYRIGHT MATERIAL OMITTED

Edith M. Edwards, Valdosta, for appellant.

J. David Miller, District Attorney, James G. Threlkeld, Assistant District Attorney, for appellee.

BERNES, Judge.

A Lowndes County jury found George Arnold guilty of selling cocaine in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30. Raising several enumerations of error, Arnold appeals from his conviction and the denial of his motion for a new trial. Because the trial court committed prejudicial error by removing a juror solely on the ground that he used offensive language during jury deliberations, we hold that Arnold's conviction must be reversed and that he is entitled to a new trial.

1. Arnold contends that there was insufficient evidence to support his conviction. Once a jury verdict has been rendered, the defendant "no longer enjoys the presumption of innocence." Gordian v. State, 261 Ga.App. 75, 76(1), 581 S.E.2d 616 (2003). Thus, we review the evidence in the light most favorable to the verdict, and we neither assess the credibility of the witnesses nor weigh the evidence. Green v. State, 244 Ga.App. 565(1), 536 S.E.2d 240 (2000).

Viewed in this light, the evidence shows as follows. In July of 2002, agents with the Narcotics Division of the Lowndes County Sheriff's Office procured the assistance of an informant to make a purchase of cocaine. The agents searched the informant to make sure he had no contraband on his person, wired him with audio and video and provided him with money to make the purchase. The agents instructed the informant to make the drug purchase from a red brick duplex at the corner of Troupe and Rogers Street. The informant then traveled to the duplex where Arnold sold the informant $20 worth of cocaine.

Immediately after completing the purchase, the informant returned to the location where the agents were waiting for him. The informant turned the cocaine over to one of the agents, who bagged the cocaine and marked it for identification purposes. The cocaine was subsequently transported to the crime laboratory where scientific analysis confirmed that the substance sold by Arnold was in fact cocaine.

We conclude that the evidence presented by the State, when viewed in the light most favorable to sustain the verdict, was sufficient to permit a rational factfinder to conclude that Arnold was guilty beyond a reasonable doubt of selling cocaine. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, we reject Arnold's contention that there was insufficient evidence to support his conviction.

2. Arnold argues that the trial court erred by removing a juror during the course of jury deliberations. On the first day of jury deliberations, the jury sent a note to the trial court indicating that they were deadlocked after less than two hours of deliberating. The trial court called the jury back into the courtroom and stated:

You shouldn't be too concerned about being deadlocked this early in the game, because it's not unusual for juries to have to deliberate for some period of time in regard to reaching a verdict in a case, but I think your suggestion about maybe going home and think[ing] about it is a good one.

The trial court then adjourned the proceedings and instructed the jury to report for duty the following morning.

The jury returned the next morning and recommenced deliberations. However, during the course of those deliberations, an individual juror inquired of the trial court whether there had been a question asked during voir dire concerning whether panel members believed they could enter the jury room on a fair and impartial basis. After the court answered in the affirmative, the jury requested that the trial court provide them a copy of the statutory voir dire questions that had been asked of them before the trial commenced. The trial court also received a note requesting that a new jury foreman be appointed.

After obtaining the approval of counsel for the State and the defense, the trial court provided the jury with a written copy of the voir dire questions. The trial court also advised the jury that it was up to them to appoint a new jury foreman if they saw fit, and that the court would not get involved in that process.

That afternoon, the trial judge received an additional note from one of the jurors that stated: "Any juror especially the foreman who tells another juror to go to hell should be removed!" After apprising counsel of the contents of the note, the trial court stated that it was his understanding that "the numerical division is 10-2" among the jurors, leading to a deadlock.¹ The court further noted: "Obviously, if the foreman is removed this would make it 9-2 or 10-1, so at this point it appears that the court has several options, none of which are really particularly satisfactory."² Defense counsel responded that she did not believe that the use of offensive language served as a sufficient basis to remove a juror and that the deadlock among the jurors justified a mistrial. Specifically, defense counsel stated: "I think the whole situation demands a mistrial . . . but I just don't think we can start kicking off jurors who disagree with the other jurors."

However, after further discussion, counsel for the State and the defense agreed that the jury foreman should be brought into court so that the trial court could question him about the incident.

The following exchange occurred between the trial court and the foreman:

THE COURT: Mr. Foreman, it has been reported to the Court that at some time since you and the other members of the jury arrived this morning that you told another juror to go to hell. First of all, is that correct or incorrect?

JURY FOREMAN: I can't remember saying it, but what it is we got in a heated argument with them trying to sway us one way or the other, and I can't remember. I might have said it, you know. I told her if she didn't like it she could get out, you know, leave, you know.

THE COURT: All right, sir. Well, obviously one juror telling another to go to hell, even in the face of a heated argument, I think you would have to agree, is totally improper behavior.

JURY FOREMAN: Yeah, I tried to handle it the best way I knew how, and you know they are trying to make us sway one way or another, and the people just refuse to budge so if they want another chairperson that's fine, you know.

During the course of the questioning, the jury foreman also explained why he believed the jury had requested a copy of the statutory voir dire questions, including a copy of the question that concerned juror impartiality:

[During our deliberations] [a]nother [juror] said he was locked up in jail for two days, he was innocent, so he believed that the police sometimes it's not always fair, and I told him well I had an incident the same way too where I got picked up for drunk driving, I never drank, and I took the blood test and everything and it came out positive that I never drank, so why are they using that to say that I'm being impartial? I'm not, you know, I give everything a fair trial based on the evidence and what I seen, but they're just trying to use that to discredit my opinion, you know.

The trial court then informed the foreman that he could return to the jury room.

It is clear from the record that the trial court and counsel interpreted the foreman's statements as indicating that he was likely one of the two holdout jurors.³ A discussion between the trial court and counsel regarding the appropriate course of action then ensued in which the trial court stated:

Well, unfortunately, and with a great deal of regret and frustration, I tend to think that at this point the problem is unsalvageable. I think it has probably deteriorated to the point where there's not going to be any real salvageability out of it, based upon his statement. Some other individual feels that he's had a bad shake by the police at some point. While none of the three of us would jump to that conclusion, I'm sure that the other juror who feels that he's gotten a bad shake out of the police is also going to feel that the Court was railroading something if we remove the foreman. So with the assent of counsel, the Court will bring the jury in, and if you desire that I do so, I will ask the necessary questions whether or not they have appeared to reach a deadlock, whether or not they think further negotiations would be fruitful, whether or not there's any possibility of reaching a verdict, and then depending upon their answers, we'll determine whether a mistrial should be granted.

After counsel for the State and the defense agreed that it was likely the trial court would need to declare a mistrial, the trial court called in the jury for questioning.

After the jury had returned to the courtroom, the trial court asked the jury foreman several questions concerning the jury's deliberations:

THE COURT: Members of the Jury, the Court has received some indication that you have been at approximately 10-2 division since this morning. Are you still at a 10-2 division?

JURY FOREMAN: Yes, sir.

THE COURT: Do you think that any further negotiations would result in a change in that division?

JURY FOREMAN: No, sir.

THE COURT: Do you think, then, that there is any possibility of reaching a unanimous verdict in this case?

JURY FOREMAN: There's always a possibility. There's always a possibility going one way or the other, guilty or not guilty, so just because the majority is favoring one way it could go the other way, so it's always a possibility.

THE COURT: Has there been a change in your division since this morning?

JURY FOREMAN: No, sir. I think it's reaching the stage where, you know, people are getting a little sensitive, touchy, and I think we are shouting at each other a little bit, so I think we're at the argumentative stage, so...