Pennie v. State , 271 Ga. 419 ( 1999 )

Carley, Justice,

dissenting.

I agree with Divisions 1, 3, and 4 of the majority opinion, but disagree with the holding of Division 2. I believe that the absence of Pennie during the colloquy with the juror was, at most, harmless error. Therefore, I dissent to the judgment of reversal.

The majority does not discuss whether there was any harmful effect resulting from Pennie’s absence, but merely concludes that it must presume prejudice. However, no “presumption of prejudice” ever arises if the character of the communication with a juror clearly shows that it could not have been prejudicial to the accused. Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998). Moreover, even where the presumption of prejudice does arise in the context of such communication, it is rebuttable. Jones v. State, 247 Ga. 268, 270 (2) (a) (275 SE2d 67) (1981). Its effect is to place the burden of showing a lack of harm on the State. Jones v. State, 258 Ga. 96 (366 SE2d 144) (1988). See also Turpin v. Todd, 268 Ga. 820, 830 (2) (493 SE2d 900) (1997). “[I]n some instances, because of the particular facts of the case, it has been held that some proceedings in the trial of an accused in his absence will not require the grant of a new trial.” Warner v. State, 232 Ga. 523, 526 (1) (207 SE2d 466) (1974) (harmless error where the accused’s attorney extensively questioned the bailiff and the prosecutor regarding an unauthorized communication, but made no effort to have his client present until the jurors were examined). Not all communications between the trial judge and a juror occurring in the absence of the accused result in reversible error, but only those which materially affect the case or provide a causal link to the verdict. Logan v. State, 266 Ga. 566, 567-568 (2) (468 SE2d 755) (1996) (harmless error where trial court responded, in the absence of the accused and his counsel, to a juror’s question regarding inability to reach a verdict). An improper communication is reversible error only if there is a reasonable probability that it contributed to the verdict. Burtts v. State, 269 Ga. 402, 403 (3) (499 SE2d 326) (1998); Logan v. State, supra at 568 (2).

Even Hanifa v. State, supra at 808 (6), upon which the majority relies, recognizes that this Court must examine the contents of the trial court’s communication with the juror to determine whether it constitutes harmful or harmless error. Although the State had the burden to show the absence of harm, if “the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant. [Cit.]” Jones v. State, 258 Ga., supra at 97. In the colloquy here, both the trial court and Pennie’s own defense counsel questioned the juror. The questioning established without dispute that the juror merely made eye contact with a spectator in the hallway and that only the juror spoke, saying, “hey, how you doing.” The juror thought that they may have recognized one another, but stated that the spectator did nothing intended to influence him, and that he could still make a decision based upon the evidence and put aside any other factors. In addition to this innocent incident, the juror also mentioned that he may have recognized a picture of the victim, and expressed some concern that he might be recognized because of his jury service. After the colloquy, the trial court and Pennie’s attorney agreed that the juror was just being extremely conscientious.

In determining prejudice, it is appropriate to examine the propriety of the trial court’s action or inaction undertaken during the absence of the accused. See Burtts v. State, supra at 403 (3). The juror’s possible recognition of the victim and a spectator and his concern over possible recognition at a later date are more innocuous than many other instances of juror relationships and fears which have not fiirnished a ground for disqualification. Matthews v. State, 268 Ga. 798, 799 (2) (493 SE2d 136) (1997); Thornton v. State, 264 Ga. 563, 573 (13) (b) (449 SE2d 98) (1994); Fuller v. State, 230 Ga. App. 219 (1) (496 SE2d 303) (1998); Waddell v. State, 224 Ga. App. 172,175 (3) (b) (480 SE2d 224) (1996); Bell v. State, 203 Ga. App. 109, 110 (2) (416 SE2d 344) (1992). Under the circumstances, it is impossible to discern any harm from Pennie’s absence. It would be rank speculation to hold that her presence could have resulted in the juror’s disqualification or made a guilty verdict any less likely. The only conclusion to be drawn from these facts is that there is no reasonable probability that the absence of the accused from the colloquy with the juror contributed to the verdict.

Accordingly, the court reverses Pennie’s conviction only because the trial judge did not conduct the manifestly harmless colloquy with the individual juror in open court. Recoha v. State, 179 Ga. App. 31, 33 (3) (345 SE2d 81) (1986). As already explained, however, the presumption of prejudice from the absence of an accused is not so absolute as the majority portrays it.

“ ‘In considering the right of the accused to be present at every stage of the trial, and to have his counsel present, we must not lose sight of the further principle, equally well established, that a new trial will not be granted on account of an error which manifestly caused no injury to the accused. It would be trifling with justice to set aside a verdict clearly and strongly supported by the evidence, solely on the ground that such an error had been committed by the trial judge. To warrant such action by a reviewing court, it must be manifest that the error was prejudicial in character.’ (Cit.)” [Cit.]

Decided September 13, 1999. Brian Steel, for appellant. Patrick H. Head, District Attorney, Debra H. Bernes, Nancy I. Jordan, Prank R. Cox, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Angelica M. Woo, Assistant Attorney General, for appellee.

Recoba v. State, supra at 33 (3). Even if the trial court committed a procedural error, I do not believe that it was prejudicial to Pennie in any manner and, therefore, I dissent.