McCrary v. State

• Decision Date: 14 April 1989
• Docket Number: No. A89A0311,A89A0311
• Citation: 191 Ga.App. 336,381 S.E.2d 579
• Parties: McCRARY v. The STATE.
• Court: Georgia Court of Appeals

Page 579

381 S.E.2d 579

191 Ga.App. 336

McCRARY v. The STATE.

No. A89A0311.

Court of Appeals of Georgia.

April 14, 1989.

Erion & Exum, Charles T. Erion, Macon, for appellant.

Willis B. Sparks III, Dist. Atty., Wayne G. Tillis, Kimberly S. Shumate, Howard Z. Simms, Asst. Dist. Attys., for appellee.

CARLEY, Chief Judge.

Appellant was tried before a jury on an indictment charging him with six counts of selling cocaine. On the morning after the jury had begun its deliberations, the jury forewoman reported to the trial court that she had received an anonymous telephone call the previous evening. According to the forewoman, the unknown caller had reported information calculated to evoke sympathy for appellant. The trial court determined that another juror had received a similar anonymous call. When the trial court asked if the two could "put that information quickly out of [their] minds and quickly continue [their] deliberations," the forewoman responded that she could. The other juror, however, responded that she could but that "it's hard, real hard. I'll try my best." The State then moved for a mistrial. Over appellant's objection, the trial court granted a mistrial. Appellant subsequently filed a plea of double jeopardy. Pursuant to Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982), appellant appeals directly from the trial court's order overruling his plea.

We note at the outset that this case does not involve a motion for mistrial predicated upon the alleged bad faith conduct of the State or the trial court or upon the alleged false answers given by a juror during voir dire. Compare Cobb v. State, 246 Ga. 619, 272 S.E.2d 296 (1980); Williams v. State, 180 Ga. 595, 597(2), 180 S.E. 101 (1935). It involves a motion for mistrial predicated upon an alleged improper communication with a juror. " 'We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious cases.... But, after all, [courts] have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.' " Jones v. State, 232 Ga. 324, 327, 206 S.E.2d 481 (1974).

In Jones v. State, supra at 328, 206 S.E.2d 481, the Supreme Court discussed " '[t]he cases in which mistrials have been declared because of suspected juror bias.... [Cits.] In each of these cases, after the jury had been impaneled and sworn, the trial judge received information which rendered suspect the ability of one or more of the jurors to reach an impartial verdict. The exercise of the trial judge's discretion in declaring a mistrial was upheld, and reprosecution was permitted over objections based on the double jeopardy clause. Significantly, in each case, after the trial judge had ascertained that a juror has received an improper communication, the reviewing court did not...