Falsetta v. State, 61728

• Decision Date: 28 April 1981
• Docket Number: No. 61728,61728
• Citation: 158 Ga.App. 392,280 S.E.2d 411
• Parties: FALSETTA v. The STATE.
• Court: Georgia Court of Appeals

Page 411

280 S.E.2d 411

158 Ga.App. 392

FALSETTA v. The STATE.

No. 61728.

Court of Appeals of Georgia.

April 28, 1981.

Certiorari Denied June 2, 1981.

Johnny W. Warren, Dublin, for appellant.

Beverly B. Hayes, Dist. Atty., A. Jeff Lanier, Asst. Dist. Atty., Hugh, for appellee.

DEEN, Presiding Judge.

Michael Falsetta appeals from his conviction of violating the Georgia Controlled Substances Act.

1. Appellant contends that the trial court erred in denying his motion for a new trial because one of the jurors failed to respond to a question during the voir dire of his jury panel.

During the voir dire examination of the panel, defense counsel asked: "...Are any of you either now or have you ever been in the past, employed by any law enforcement agency of any kind?" One juror, Mr. Tanner, replied: "I don't understand the question." Counsel explained: "What I'm asking you is are any of you either now or have you in the past before now ever worked for any law enforcement agency, by that the police department, State Patrol, G.B.I. or even as a security guard or anything like that?" Tanner stated that he had been Chief of Police for Danville, Georgia. Counsel inquired: "Anyone else? Do any of you have any close family members who are affiliated with any law enforcement agency either now or in the past?" Two jurors volunteered information as to relatives who were employed as deputy sheriffs. Then counsel asked: "Anyone else? Are any of you friends of (certain named individuals)?" Several jurors responded affirmatively to the question.

The day after the verdict was returned against the defendant, Falsetta's counsel learned that one of the jurors, J. B. Brantley, Jr., had formerly been a policeman employed by the City of Dublin, Georgia. Counsel informed the trial judge of his discovery and filed a motion for a new trial with supporting affidavits showing that Brantley had been employed as a police officer from 1965 through 1967. In response to the motion, Brantley filed an affidavit claiming that he either did not hear or understand any question asking for information regarding his previous service as a police officer and did not recall any such question having been asked of him.

In Pierce v. Altman, 147 Ga.App. 22, 248 S.E.2d 34 (1978), this court held that appellant was deprived of his right to select an impartial jury when a juror who failed to respond to a question as to whether any of the jurors had ever been a defendant in a lawsuit for personal injuries was selected to serve on the jury and was elected foreman. After trial, it was discovered he had been a defendant in such a lawsuit four years earlier. Relying upon Glover v. Maddox, 100 Ga.App. 262, 111 S.E.2d 164 (1959), and Code Ann. § 59-705, the court held that a party is given the right to inquire into "any fact or circumstance indicating any inclination, leaning or bias which the juror might have respecting the subject matter of the suit."

The state's contention that appellant has failed to show that there was any prejudice in the jury verdict is without merit. Both the Federal and Georgia Constitutions guarantee the defendant in a criminal case the right to a trial by jury. Along with this right must also go the right to be tried by an impartial jury. The question posed by counsel to the jurors was to determine any bias or prejudice towards a criminal defendant. The juror's failure to respond would have been considered to be a denial of any past employment by a law enforcement agency and would have misled counsel into accepting the juror without an opportunity to question him about whether his past employment as a law enforcement officer would affect his...