Lively v. State

• Decision Date: 16 October 1992
• Docket Number: No. S92P0666,S92P0666
• Citation: Lively v. State, 262 Ga. 510, 421 S.E.2d 528 (Ga. 1992)
• Parties: LIVELY v. The STATE.
• Court: Georgia Supreme Court

Page 528

421 S.E.2d 528

262 Ga. 510

LIVELY v. The STATE.

No. S92P0666.

Supreme Court of Georgia.

Oct. 16, 1992.

Reconsideration Denied Nov. 6, 1992.

Walton Hardin, Washington, Larry L. Duttweiler, Lawrenceville, Brian Mendelsohn, Staff Atty., Atlanta, for Lively.

Dennis Sanders, Dist. Atty., Thomson, Michael J. Bowers, Atty. Gen., Atlanta, for the State.

C.A. Benjamin Woolf, Asst. Atty. Gen., Atlanta.

Patsy Morris, Atlanta, Joseph L. Chambers, Sr., Prosecuting Attys.' Council, Smyrna, for other interested parties.

BELL, Presiding Justice.

John James Lively, Jr., was convicted in Wilkes County on two counts of murder and one count of aggravated assault in connection with the shooting deaths of Sarah Jane Paschall (Lively's former companion) and her sister, Melanie Paschall Land. Lively was sentenced to death on each of the two murder counts. ¹ He now appeals contending, inter alia, that the trial court erred by refusing to grant a defense motion to excuse for cause a prospective juror who was listed as a state's witness.

1. At the outset of the voir dire, the district attorney stated to the court that he would not call this juror as a witness in his case-in-chief, but reserved the right to call him in rebuttal or at the sentencing phase.

The juror knew one of the shooting victims; he was her employer. He also knew her parents. He had discussed with the deceased her "on-again/off-again" relationship with Lively and had given her "fatherly advice" concerning that relationship, including matters that might be "brought out" at trial. He had also met and talked to Lively and "casually" discussed his relationship with the deceased. After her death, he was asked to serve--and did serve--as the deceased's pall bearer. The juror testified he had expressed his "remorse" and "sorrow" to the deceased's family and that it "was understood" that if there was anything he could do, they should not hesitate to ask.

The trial court refused to grant the defendant's motion to excuse the juror for cause based solely on the juror's testimony that, despite his close relationship with the deceased, he could be a fair and impartial juror. Thus, the defendant was forced to use a peremptory strike to remove the juror.

Lively contends that, because of the juror's close relationship with the victim and the victim's family, the juror could not have been truly impartial even if he sincerely believed he could be, and, moreover, that his "in-depth personal knowledge of the case" and his status as a potential witness for the state disqualified him in any event. We agree.

As we observed in Jones v. State, 232 Ga. 324, 330, 206 S.E.2d 481 (1974):

[A] juror may be found disqualified even though he insists he is not biased; therefore, the juror's opinion of his qualification is by no means determinative....

When ruling on a potential juror's qualifications, the trial court must make a factual determination based on all the circumstances known to the court, including, but not limited to, the juror's own opinion of his impartiality. The record as a whole fails to support the court's finding that the juror could put aside his close relationship with the deceased and his personal knowledge of her difficulties with the defendant and render an impartial verdict based solely on the evidence presented at trial.

In addition, we agree with the defendant that while ancient Georgia law countenances witnesses serving as jurors, see, e.g., Sav., Fla. & Western Ry. Co. v. Quo, 103 Ga. 125, 127, 29 S.E. 607 (1897) and cits., such practice "conflicts with current Georgia law" prohibiting contacts between jurors and witnesses, see, e.g., Castro v. State, 186 Ga.App. 248(2), 367 S.E.2d 42 (1988) and cits., requiring the mandatory sequestration of witnesses on request, OCGA § 24-9-61, requiring the mandatory sequestration of jurors in death penalty cases, OCGA § 15-12-142, and prohibiting jury questioning of witnesses. State v. Williamson, 247 Ga. 685, 279 S.E.2d 203 (1981). In the future, jurors known by the parties to be prospective witnesses about matters material to the case should be excused for cause...