Basulto v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: June 21, 2023
S23A0733. BASULTO v. THE STATE.
PETERSON, Presiding Justice.
Jose Basulto appeals his convictions for felony murder and
aggravated assault stemming from an incident in which he drove his
truck into several pedestrians after a bar fight. Basulto’s actions
resulted in the deaths of two of the pedestrians, Regulo Rodriguez
Hernandez and Jose Lopez Diaz, and left Ramona Gaspar Carmona
seriously injured. 1 Basulto’s only argument on appeal is that the
1The crimes occurred on June 9, 2020. On February 24, 2021, a Gwinnett
County grand jury indicted Basulto for two counts of felony murder (both
predicated on aggravated assault) and three counts of aggravated assault. In
June 2022, a jury found Basulto guilty of all counts. The trial court sentenced
Basulto to two sentences of life without parole for the felony murder counts,
plus a consecutive 20-year sentence for the aggravated assault of Carmona.
The remaining counts were merged for sentencing purposes. Basulto filed a
timely motion for new trial on June 21, 2022; the motion was amended on
January 26, 2023. Following a hearing, the trial court denied the motion in an
order entered on February 13, 2023. Basulto filed a timely notice of appeal, and
his appeal was docketed to this Court’s April 2023 term and submitted for
consideration on the briefs.
trial court erred by refusing to remove a juror who revealed new
information about the juror’s criminal history after being selected
for the jury. Because the trial court did not abuse its discretion in
failing to remove the juror, we affirm.
The evidence at trial showed as follows. In the early morning
hours of June 9, 2020, Hernandez, Diaz, and Carmona were drinking
beer together in a Gwinnett County bar. Basulto, another patron at
the bar, got into an argument with Hernandez. After dispersing to
the parking lot, Basulto and Hernandez got into a fist fight; Basulto
lost. Someone broke up the fight, and Hernandez, Diaz, and
Carmona began walking home. Basulto, having been beaten up by
Hernandez and visibly angry, got into his truck. Basulto proceeded
to strike all three of the other men with his truck, killing Hernandez
and Diaz and seriously injuring Carmona.
As noted above, the only issue Basulto raises on appeal is the
trial court’s handling of an issue involving a selected juror, Juror No.
26. During voir dire, Juror No. 26 had responded affirmatively to
various general questions posed by the parties, such as whether
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anyone on the panel had military experience. But Juror No. 26 had
not responded affirmatively to the prosecutor’s questions asking
whether any prospective jurors had been convicted of a felony and
not had their rights restored or had been arrested, prosecuted, or
convicted of a criminal offense “more severe than DUI” or “DUI and
up.” 2 During individual voir dire, Juror No. 26 had reported that he
was a retired roofer who had served in the Marine Corps and at one
point had his foot run over by a vehicle in a hit-and-run accident;
Juror No. 26 had verified that he could be fair to both sides of the
case.
After the jury was selected, but before it was sworn in, the
selected jurors were sent home for the night. Upon returning for trial
the following day, Juror No. 26 sent a note to the trial court stating
that he had made a false statement during jury selection. The juror
claimed that he had recalled overnight that he had, in fact, been
charged and convicted of a felony. In his note, Juror No. 26 opined
Asked by an unidentified prospective juror to repeat the question, the
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prosecutor phrased it differently.
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that Basulto “deserve[d] better” than to have his trial postponed or
cancelled due to the juror’s involvement.
Juror No. 26’s note was read to the parties, and both the State
and Basulto agreed that the juror should be brought into the
courtroom for further questioning by the court; that questioning
revealed some uncertainty on the juror’s part regarding his own
criminal history. A Georgia Crime Information Center report was
obtained, revealing that Juror No. 26 was not a convicted felon,
although he had been arrested several times on various charges,
more than 20 years prior to the trial, and some of those arrests had
resulted in misdemeanor convictions. One of the arrests was for
aggravated assault, for which he pleaded guilty to a reduced
misdemeanor charge of disorderly conduct. Defense counsel
acknowledged that it did not appear that Juror No. 26 was
disqualified from service by virtue of being a convicted felon and
stated that he “would defer to the State as to what they wish to do,”
that he did not “really have a great desire to replace him,” and that
he was “perfectly happy with” the selected juror. But when the trial
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court then asked the parties if they wished to question the juror
further, defense counsel requested additional questioning of the
juror, which the trial court allowed. During that additional
questioning, Juror No. 26 evidenced a lack of recollection about the
prior arrests and indicated he did not respond to the voir dire
question about previous arrests because he misunderstood the
question and thought it was about DUI specifically.
After the additional questioning of the juror was complete, the
trial court asked the prosecutor for his position; the prosecutor
stated that the State did “not find a sufficient basis to excuse the
juror at this time.” The defense then asked the trial court to replace
the juror with an alternate, while allowing that Juror No. 26 was
not a convicted felon and counsel did not “think he was being
deliberately deceptive.” Counsel stated that “given the nature of the
charge in this case, given the fact that he was charged with one of
the same crimes, and given the fact that he has essentially no
recollection of what happened in all of these cases, he is not the
person we thought we were putting on the jury, essentially.” Counsel
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added that the juror should be dismissed because “while he was not
perhaps intending to be deceptive, he was nonetheless not disclosing
information that needed to be related to us to pick a jury.” Finding
that the juror had not “deliberately left . . . out” information about
his criminal history or “tried to be deceptive” and had not given
answers giving rise to a conclusion that he was not qualified to serve,
the trial court ruled that Juror No. 26 would remain on the jury.
After the court ruled, defense counsel said he “would stand by [his]
previous objection.” The case proceeded to a trial before a jury that
included Juror No. 26, and the jury found Basulto guilty on all
counts.
Basulto argues on appeal that the trial court abused its
discretion when it refused to remove Juror No. 26. His claim fails.
In felony criminal trials, a trial court is statutorily obligated to
hear objections to prospective jurors based on a number of specified
disqualifying characteristics, including that the juror has been
convicted of a felony and not had his or her civil rights restored. See
OCGA § 15-12-163. And the trial court “shall” dismiss the juror for
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cause if the court is satisfied of the truth of any such objection on
that basis. OCGA § 15-12-163 (c). The trial court also is obligated to
“excuse for cause any juror who from the totality of the juror’s
answers on voir dire is determined by the court to be substantially
impaired in the juror’s ability to be fair and impartial.” OCGA § 15-
12-164 (d). Objections to a juror for cause must be made before the
juror is sworn in the case if the basis for the objection is known to
the party or his counsel, but “newly discovered evidence to disprove
the juror’s answer or to show him incompetent may be heard by the
judge at any time before the prosecuting counsel submits any of his
evidence in the case[,]” and if a “juror is proved incompetent, the
judge shall order him to withdraw from the jury and shall cause
another juror to be selected.” OCGA § 15-12-167.
In addition to the statutory bases for which it is required to
disqualify a juror prior to the State beginning its presentation of
evidence, the trial court also must replace a seated juror with an
alternate “[i]f at any time, whether before or after final submission
of the case to the jury, a juror dies, becomes ill, upon other good
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cause shown to the court is found to be unable to perform his duty,
or is discharged for other legal cause[.]” OCGA § 15-12-172. We have
said that this provision “vests trial courts with broad discretion to
discharge a juror and replace him or her with an alternate at any
time as long as the court has a sound legal basis.” Johnson v. State,
289 Ga. 498, 501 (3) (713 SE2d 376) (2011) (citation and punctuation
omitted).3
Here, Basulto requested Juror No. 26’s removal before the jury
was sworn in and before the State began its presentation of evidence
in the case, relying on information apparently acquired only after
the juror had been deemed competent and selected for service.
Therefore, the trial court would have been bound to remove the juror
had either party proven a challenge for cause under OCGA § 15-12-
163 or OCGA § 15-12-164. But Basulto did not challenge the juror
3Of course, this discretion is not unfettered, and must be exercised with
the utmost care once jury deliberations have begun, especially when
considering whether to remove a dissenting juror when the jury is deadlocked,
given the need to safeguard a defendant’s right to a unanimous verdict. See
Jones v. State, 314 Ga. 214, 223 (2) (b) (875 SE2d 737) (2022).
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under OCGA § 15-12-163, conceding that Juror 26 was not
disqualified by virtue of a felony conviction. And Basulto did not
argue that the juror was disqualified under OCGA § 15-12-164 on
the ground that his answers showed that he was substantially
impaired in his ability to be fair and impartial. Although Basulto
alluded to the fact that Juror No. 26 had been charged with a similar
crime (presumably, aggravated assault) and referenced the juror’s
lack of recollection about the particulars of his criminal history,
Basulto did not explain how that could have impaired the juror’s
ability to be fair and impartial. Compare Washington v. State, 253
Ga. 173, 173-174 (2) (318 SE2d 55) (1984) (no abuse of discretion in
removing juror who realized after being selected that he was
acquainted with the defendant and admitted in follow-up
questioning that the potential of bias worried him). “[T]he law
presumes that potential jurors are impartial, and the burden of
proving partiality is on the party seeking to have the juror
disqualified.” Terrell v. State, 313 Ga. 120, 125-126 (1) (868 SE2d
764) (2022) (citation and punctuation omitted).
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Basulto did also suggest that Juror No. 26 should be dismissed
not because of any particular characteristic or statement, but
because of his failure to disclose requested information sooner.
Counsel argued that the juror should be dismissed because he had
“not disclos[ed] information that needed to be related to us to pick a
jury” such that “he is not the person we thought we were putting on
the jury, essentially.” We have said that it is not an abuse of the trial
court’s broad discretion under OCGA § 15-12-172 “to remove a juror
who fails during voir dire to provide accurate information that [a
party] has a legitimate right to know.” Johnson, 289 Ga. at 500-501(3) (rejecting argument that the trial court erred in replacing juror
with alternate after jury was sworn based on juror’s admission that
contrary to answers on voir dire she had been arrested and that her
son was on probation and was being prosecuted by the DA’s office
handling the case). But that is not to say that it is an abuse of
discretion to decline to remove a juror who does not respond to voir
dire questions accurately. Moreover, here, the trial court found that
Juror No. 26 had not “deliberately” omitted information in response
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to voir dire questioning or otherwise “tried to be deceptive.” Indeed,
the question at issue, asking whether jurors had ever been arrested,
prosecuted, or convicted of a criminal offense “more severe than
DUI” or “DUI and up,” reasonably could be viewed as imprecise and
confusing, as it assumed prospective jurors would know which
crimes were considered more “severe” than DUI. On this record, we
cannot say that the trial court abused its discretion in declining to
remove Juror No. 26.
Judgment affirmed. All the Justices concur.
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