Reid v. State

• Decision Date: 07 May 1992
• Docket Number: No. A92A0273,A92A0273
• Citation: Reid v. State, 419 S.E.2d 321, 204 Ga.App. 358 (Ga. App. 1992)
• Parties: REID v. The STATE.
• Court: Georgia Court of Appeals

Page 321

419 S.E.2d 321

204 Ga.App. 358

REID v.The STATE.

No. A92A0273.

Court of Appeals of Georgia.

May 7, 1992.

Reconsideration Denied May 28, 1992.

Certiorari Denied July 16, 1992.

Robert E. Surrency, Watkinsville, for appellant.

Joseph H. Briley, Dist. Atty., James L. Cline, Jr., Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Reid appeals from a judgment of conviction and sentence entered for the offense of burglary, OCGA § 16-7-1, and from the denial of his motion for new trial.

A window had been broken at the Greene County Community Service Building and the offices occupied by the Health Department, the Veteran's Administration and the Director of the Senior Center had been ransacked.Approximately $300 in United States Treasury Bonds had been stolen from the VA office, $15 to $20 in change had been taken from a soft drink machine and a small amount of change had been taken from a cash box kept in the health office.Three latent fingerprints lifted from the cash box conclusively matched Reid's.He had been there a month earlier and had seen the cash box.

1.Appellant contends that the court erred in failing sua sponte to declare a mistrial when it learned that a member of the jury had served on the grand jury which returned the indictment, thus depriving him of his "constitutional rights."

No prospective juror responded when they were asked during voir dire whether anyone was a member of the grand jury which brought the indictment against appellant.Defendant(and the State) presumably did not notice that the name of "Willie D. Hobes" was on the indictment as a grand juror and was also on the list of jurors, both of which documents he had in advance of the voir dire.Nor was anything said when the panel was called and Hobes' name was read aloud.

Almost immediately after the jury retired for deliberations, it advised the court by note that a juror had indeed served on the grand jury.Defendant responded that the person could not continue on the jury.The court said it would bring in the alternate as a substitute and asked if there were any other ideas for a solution.None was offered, and defendant expressly stated he had no motions in this regard but that the grand juror could not serve.The court called the jury back out and explained why Mr. Hobes was disqualified and directed the alternate to take his place.The jury then retired, the court asked for objections, and none were raised.Appellant did not complain of the substitution until after the verdict, when he amended his motion for new trial.

" '[O]bjections to irregularities must ordinarily be made at a time when they may be remedied, or they are waived.(Cit.)(However, a) failure to object may be excusable ...'State v. Williamson, 247 Ga. 685, 686(279 SE2d 203)(1981).The question presented ... is whether or not appellant failed to exercise due diligence."Thomas v. State, 249 Ga. 339, 340, 290 S.E.2d 462(1982).

The first opportunity to object was when Hobes' name was called as a panel member.The proper time for objection and request for mistrial occurred when the jury notified the court of the participation of the grand juror.Appellant affirmatively agreed at that time to the substitution of the alternate, thus indicating satisfaction with the jury as composed.Unlike Thomas where the participation of a grand juror on the trial jury did not become apparent until after the return of a guilty verdict infected by that participation, appellant learned of the irregularity at the latest when the remedial action demanded in the post-verdict motion could have been sought.Instead, he agreed to be tried by the jury with the substitute.He fails to show that what the court did, with his approval, constituted reversible error because a mistrial was mandated by law or that the grand juror's brief part in deliberations, if indeed he had any on the case itself, denied him a fair trial by an impartial jury.Thomas' verdict was returned by a jury whose members included the grand juror; appellant's did not.Cf.Evans v. State, 196 Ga.App. 1, 395 S.E.2d 342(1990), where it also does not appear that a mistrial was requested when the irregularity was discovered but it does not appear that defendant expressly agreed to the substitution, as here.As to the merits, the juror in Evans had expressed to the other jurors during deliberations that she knew defendant well enough for this to influence her decision and the foreman reported that it was interfering with her ability to arrive at a verdict.That is not the case with respect to appellant's grand juror.If there was a "presumption of prejudice" because the juror failed to respond properly during voir dire and sat briefly as a trial juror, it is overcome by the particular circumstances of this case.SeeMotes v. State, 192 Ga.App. 302, 303(3), 384 S.E.2d 463(1989).

2.It is further asserted that a new trial is mandated because the alternate juror who participated in the jury deliberations was appellant's first cousin and allegedly had improper information concerning the case.

During voir dire, the jury panel was asked "whether any of you are related by blood or marriage to the Defendant ... That would be third cousins or closer...."No response was heard.

The alternate juror was called as a witness during a hearing on appellant's motion for new trial.She disclosed that she and one of the State's trial witnesses had borne a child out of wedlock.It was established that the juror was not related to the child's father by blood or marriage.Appellant's counsel attempted to question the juror concerning her alleged familial relationship to his client, but the court prohibited such questioning.

OCGA § 15-12-135(a) provides: "All trial jurors in the courts of this state shall be disqualified to act or serve in any case or matter when such jurors are related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree as computed according to the civil law."

If the juror was in fact the first cousin of appellant and therefore related within the prohibited degree, she would be disqualified to serve in the trial of the case."But the mere...