Alexander v. State , 200 Ga. App. 411 ( 1991 )

Pope, Judge,

concurring specially.

I concur in the majority’s decision to affirm the denial of defendant’s motion for retrial, but not for the reasons, as given in the majority opinion, that defendant failed to tender a motion for mistrial or failed to show the juror’s conduct was prejudicial.

It is true that defendant’s attorney did not move for mistrial. He did, however, object to the juror’s “bringing a map that’s not in evidence ... to the jury room. ...” After the verdict was returned, defendant filed a motion for new trial, based in part on the alleged improper conduct of the juror. If the record had shown the irregularity in conduct of which the defendant complained, then I believe the defendant’s objection would have properly preserved his right to appeal from the trial court’s denial of his motion for new trial. “There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990) (quoting Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986)).

If the defendant had, indeed, raised an issue of improper conduct, then the burden was not on defendant to show prejudice, but was upon the prosecution to rebut the presumption of prejudice. Here, however, the objection was to the juror’s bringing the map into the jury room. The record reflects the juror did not bring the map into the jury room but that it was taken from the juror by the bailiff before the jury retired to the jury room. Defendant did not raise an objection to the juror’s possession of the map or referral to the map, which is not shown by the record, anyway. The record thus shows no irregularity from which a presumption of prejudice would be based.