Mullins v. State , 241 Ga. App. 553 ( 1999 )

Barnes, Judge,

dissenting.

I respectfully dissent from the majority and join Judge Eldridge in Division (2) (b) (i) of his dissent, in which he notes that the defendants in this case received exactly what they asked for when the trial court removed the two jurors who were questioned about an improper contact. In granting the defendants’ request to remove the two jurors, the trial court said it was doing so “to remove any possibility of error.” After asking the defendants if they agreed to this action and receiving affirmative responses, the court said, “We will remove those two jurors. Now, anything else?” Defense counsel responded, “No.” I would therefore conclude that the defendants waived any error in the trial court’s failure to grant a mistrial. See Cobb v. State, 236 Ga. App. 265, 269-270 (4) (511 SE2d 522) (1999).

Decided November 19, 1999 Reconsideration dismissed December 16, 1999. Husby, Myers & Stroberg, Roland H. Stroberg, for appellants. N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.