Jones v. State

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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prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 22, 2022
S22A0069. JONES v. THE STATE.
S22A0380. MCFARLAND v. THE STATE.
PETERSON, Justice.
Appellants Xzavaien Jones and Terrell McFarland were tried
jointly and convicted of murder and related offenses in connection
with the shooting death of Anthony Meredith. 1 Both men appeal and
1The crimes took place on March 26, 2016. On September 27, 2016, a
Muscogee County grand jury jointly indicted Jones, McFarland, and Tekoa
Young for malice murder (Count 1), felony murder predicated on aggravated
assault (Count 2), aggravated assault (Count 3), and violating the Georgia
gang act (Count 5). Jones was also indicted for one count of possession of a
firearm during the commission of a felony (Count 4).
At a joint jury trial held from April 17 through May 3, 2017, Jones,
McFarland, and Young were found guilty of all counts. Jones was sentenced to
life imprisonment for malice murder, five consecutive years in prison for the
firearm charge, and fifteen concurrent years in prison for the gang-act
violation; the trial court merged the remaining counts into Jones’s malice
murder conviction. McFarland was sentenced to life imprisonment for malice
murder and five consecutive years in prison for the gang-act violation; the trial
court merged the remaining counts into McFarland’s malice murder charge.
Although the court purported to merge Jones’s and McFarland’s felony murder
charges into their malice murder convictions, those counts were actually
vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372 (434 SE2d
479) (1993).
raise numerous trial court errors, including the removal of a
dissenting juror during deliberations. Although the record may well
have supported findings authorizing the trial court to remove the
juror, the findings that the trial court actually made and to which
our review is limited were not sufficient to justify removal. Because
the trial court abused its discretion in removing the juror, we
reverse.2
Jones and McFarland each timely filed a motion for new trial, which was
amended, and, following a joint hearing on September 18, 2020, the trial court
denied both motions. Both men timely filed a notice of appeal; the appeals were
docketed to the term of this Court beginning in December 2021 and were
submitted for a decision on the briefs.
Young was sentenced to life imprisonment for malice murder and a
concurrent sentence of five years for the gang-act violation, and she attempted
to appeal. But in January we vacated the trial court’s order on her amended
motion for new trial and remanded the case with direction that the trial court
dismiss the motion, because her original motion was filed pro se before her trial
counsel had been authorized to withdraw.
2 Jones obtained new counsel after his motion for new trial was denied
but before a notice of appeal was filed. On appeal, Jones requested that this
Court remand his case to the trial court so that he could have the opportunity
to “have conflict-free counsel review potential claims of ineffective assistance
of counsel.” While Jones did not have an opportunity to raise claims of
ineffective assistance of his trial counsel prior to this appeal, and raising such
claims now would normally entitle him to a remand, Jones failed to enumerate
any specific claims of ineffective assistance. Accordingly, this Court denied the
motion for remand. In his brief, Jones requests that the Court reconsider its
ruling. But given our reversal of his convictions on other grounds, Jones’s
request is moot.
2
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed that, at all relevant times, Jones and
McFarland were members of the Crips gang along with Christopher
Twitty, who was in a relationship with Tekoa Young, Jones’s sister.
In November 2015, Twitty was shot and killed at his house. Young
believed that Meredith was the culprit because he had been in a
drug-related dispute with Twitty. After Twitty’s death, Young called
Shanna Douglas, who was Young’s best friend and Meredith’s
girlfriend. During that phone call, Young told Douglas that “[Young]
wasn’t going to be the only one crying.”
On the evening of March 26, 2016, Devon Wynn was at
Peachtree Mall in Columbus. Wynn, who knew both Meredith and
Jones, saw Meredith near the food court entrance to the mall.
Meredith was talking to Jones, another man, and a woman. Wynn
was walking toward the group to greet Meredith when he saw Jones
shoot Meredith. A nearby witness heard a man, whom he later
identified as Jones, yell “f**k n***er, f**k n***er” at Meredith,
followed by multiple gunshots. The witness then heard Jones say,
3
“Come on, let’s go,” and saw Jones and another man sprint to a
parked car and drive off.
Officers obtained a surveillance video recording from the mall’s
parking lot from the evening of March 26. Douglas identified Young
and Jones in the surveillance video at trial. The video showed that
Young drove into the parking lot, got out of her car and paced while
talking on a cellphone. Shortly thereafter, Jones and another man
arrived at the mall together and parked a few spots away. The group
talked briefly and then approached Meredith. Jones shot Meredith
multiple times. The group then ran back to their respective vehicles
and drove away.
After the shooting, Young spoke to police officers. She arrived
at the police station driving a car that matched the car that she was
seen driving in the surveillance video of the murder. Young denied
any involvement in the shooting, telling officers that, on the
afternoon of March 26, she left work and drove straight to a strip
mall to do some shopping. Surveillance video from the strip mall
recorded after the shooting showed Young wearing the same clothes
4
that she had on in the surveillance video from Peachtree Mall.
Police officers also interviewed McFarland. He denied being at the
mall on the day of the shooting. He did admit knowing Meredith,
being a member of the Crips gang, and knowing about the escalating
dispute between Meredith and Twitty.
Cellphone data introduced at trial showed that the cellphones
associated with Jones, McFarland, and Young were all in the area
of Peachtree Mall at the time of the shooting. Young’s phone placed
three calls right after the shooting, two to McFarland and one to
Jones. Young also sent McFarland a text message (which Young
subsequently deleted) asking “y’all good?” Investigators found that
Young had deleted other post-shooting texts from her phone. In one
deleted text, Young admitted being at the mall, and in another,
Jones sent Young the address of 6351 Birling Drive. After the
shooting, McFarland’s and Jones’s phones traveled east and stopped
in the area of 6351 Birling Drive. Meanwhile, Young’s phone
traveled approximately three miles away to a strip mall.
Meredith’s autopsy revealed that he suffered ten gunshot
5
wounds. The majority of the wounds were back to front, indicating
that he was shot in the back several times. The medical examiner
concluded that the manner of death was homicide caused by
multiple gunshot wounds. The State also called an expert in
criminal gang activity who testified that, based on statements the
defendants made to law enforcement officers, their tattoos, their
association before and after the crime, and their social media posts,
Jones and McFarland were associated with the Crips gang. He
further opined that the shooting was consistent with a retaliatory
act required by the rules of the gang that would also increase Jones’s
and McFarland’s status within the gang’s structure.
2. Jones and McFarland assert that the trial court abused its
discretion when it removed the jury foreperson after deliberations
had started. We agree.
(a) The record shows that the jury was sent out for
deliberations at 5:00 p.m. on Wednesday, April 26, 2017. The jury
voted for a foreperson (L.M.) and then requested to return in the
morning to begin deliberating. The trial court agreed and dismissed
6
the jury for the night. Deliberations began on April 27 at 9:05 a.m.
The jury sent the court three notes at 10:46, 11:07, and 11:26 a.m.,
requesting to view certain video evidence. The court then informed
the jurors that it would break for lunch and return at 1:00 p.m. to
review the evidence. After court resumed, but before the jury
reviewed the video, the court received two more notes. Relevant to
the claim at issue here was the second note, which the court labeled
Jury Question 7. This note, which the record reflects was written by
L.M., stated:
What if someone feels like they’re guilty but not enough
hardcore evidence to prosecute[?]
no gun – but gun charge
no clothing
no gunpowder
no calls before
no sufficient evidence about gang related
flimsy witness – the eyewitness seem[s] to know more
about the case than [he’s] revealing
it’s a[]lot of loopholes.
The trial court called the jurors into the courtroom and allowed
them to review the requested video evidence. They were then sent
back to the jury room to deliberate, and the judge conferred with the
7
parties regarding the proper response to Jury Question 7.
Thereafter, the court called the jury back into the courtroom and
gave the following instruction:
If you’ll recall, yesterday I charged you with the law that
applies to the case, and also supplied you with two copies
of that law.[3] I will instruct you to continue to deliberate.
If you have questions, refer to the law that I’ve charged
you with, determine the law, apply the law to the facts
and the facts to the law to reach your verdict.
The jury returned to the jury room to continue deliberations.
At 5:04 p.m., the court received Jury Question 8, which stated:
“The jury cannot come to a unanimous decision at this time on any
of the 13 charges listed in the indictment. What do we do next?”
Then, at 5:07 p.m., the judge received Jury Question 9 that stated:
“Question #7 was not from the entire jury. One person wrote it and
it is the same person unwilling to deliberate on the charges.”4 The
3 The charges read to and sent back with the jury addressed, in relevant
part, the State’s burden of proof, guilt beyond a reasonable doubt, mere
presence and mere association, direct and circumstantial evidence, credibility
of witnesses, identity, party to a crime, deliberating with an open mind,
consulting with other jurors, and deciding the case based on the evidence and
not sympathy.
4 The record shows that Jury Question 9 was not written by L.M.
8
court instructed the jury to continue to deliberate. About 20 minutes
later, the jury asked to be excused for the evening and return to
deliberate in the morning. The court agreed and dismissed everyone
for the night.
The jury resumed deliberating at 9:00 a.m. on April 28. At
10:31 a.m., L.M. sent the judge a note that stated, “we have taken a
vote, more than once . . . and we cannot reach [a] unanimous vote on
any of the 13 charges.” Attached to the note was an incomplete tally
of the guilty votes for the various charges for each defendant, which
indicated that the jury was split on many of the charges. In response
to this note, the trial court again instructed the jury to continue its
deliberations. The trial court received another note at 11:20 a.m.
from L.M. that was marked “Personal to Judge.” It read:
I’m not sure if I have a different understanding of the law
or what. I honestly feel that they do have some evidence
but not enough for me to say guilty. I’m not sure if I have
a different concept of how things work or what[] my duty
here is, I have been through the evidence[;] we have went
over it. I’m not sure what y[’]all want from me, only thing
happening now is, I’m getting force[d] to follow what
everyone else is saying. Can I be switch[ed] with an
alternate so y[’]all can get the answer you’re looking for.
9
I’m firm! This is from [L.M.] alone, writing this.
The trial court had extensive discussions with the parties regarding
how it should proceed. During those discussions, McFarland, as well
as Young, moved for a mistrial. Without ruling on the motions, the
trial court eventually decided to conduct an inquiry.
The trial court brought in the jury and asked L.M. for
clarification on the tally. L.M. stated that “someone else took the
tallies and did all that, I just signed [the note].” Still, L.M. stated
that the votes for Jones were “11 to 1” on all charges; for Young, the
vote was “11 to 1” on the murder and aggravated assault charges,
and “8 to 4” on the gang act charge; and, for McFarland, the vote
was “6 to 6” on the murder charges, “7 to 5” on the aggravated
assault, and “5 to 7” on the gang act charge. 5
5 The dissent argues that L.M. was not a holdout juror because only eight
of the thirteen charges were eleven to one. But L.M. was undisputedly the lone
holdout as to those eight, including all of the charges against Jones. And more
importantly, we are aware of no authority — and the dissent identifies none —
for the proposition that a trial court has broader discretion to remove a juror
simply because one or more other jurors may share that juror’s position.
Indeed, that another juror may share that juror’s position may undermine the
notion that the juror in question had refused to deliberate. See Semega v. State,
302 Ga. App. 879, 882 (691 SE2d 923) (2010) (“that a second juror originally
10
The court then asked each juror two questions: (1) have all
jurors deliberated, and (2) have there been any instances of insult,
undue intimidation, or pressure?6 All of the jurors affirmed that
everyone had deliberated. Eight of the jurors, including L.M.,
responded that there had been no instances of insult, undue
intimidation, or pressure; four jurors (J.S., C.G., C.R., and L.W.)
answered that there had been such instances, although one added
the caveat, “[n]ot to me.” The trial court instructed these four jurors
to make a written narrative of what they had seen and provide those
writings to the court. The four written explanations stated as
follows:
Statement from J.S.: [L.M.] has not fairly deliberated
during this trial. She has insulted others because of
differing views. However, I know this is a part of the
process — to discuss our different views. To expand on
[the] insult, she has attacked (verbally) others on their
views of the law. I do not think she was fit to be on a court
case.
agreed with the replaced juror” indicated “that the juror had not refused to
deliberate but had simply reached a different decision than that of the other
jurors”).
6 The trial court instructed each juror to answer these questions with a
“yes” or “no.”
11
Statement from C.G.: I felt threatened by [the]
fore[person] by her singling me out and said she was
about to snap on someone.
Statement from C.R.: Witnessed the fore[person] refer to
a juror as “Dr. Phil.” The fore[person] has stated she
would not want any of us to ever be on a jury deciding her
fate if ever a defendant. The fore[person] has stated she
has made up her mind and she feels like we are trying to
“change her mind.” The fore[person] stated she has looked
around the room and sees the others giving her bad looks.
Statement from L.W.: [L.M.] made a statement about how
she was about to “go off” and she didn’t want to have
anyone come make arrests in here. She has also said
we’ve been giving her disgusted looks and by her language
is nonchalantly insulting several others based on their
own interpretation of the evidence presented to all of us.
She also has stated about her time in prison and I believe
she was suspected of aggravated assault according to
what I have heard from her.[7]
Once again, the parties had a lengthy discussion regarding the trial
court’s next steps. Ultimately, the court brought the four jurors and
7 During a break, the prosecutor confirmed that L.M. was arrested for
aggravated assault in 2008 and that the District Attorney’s office indicted her
on that charge, which was subsequently reduced to battery. The prosecutor
argued that L.M.’s failure to disclose this arrest during voir dire showed that
“she got on that jury with an agenda.” A review of the voir dire transcript shows
that the trial court asked the statutory question concerning whether anyone in
the pool was a convicted felon who did not have his or her civil rights restored,
but there do not appear to have been any questions concerning arrests or
misdemeanor convictions.
12
the foreperson back into the courtroom one at a time and questioned
them regarding their experience deliberating.
The testimony of the four jurors included that L.M. was
defensive and combative in the jury room; had been insulting other
members of the panel to the point that those persons would “refrain
from being forthcoming in their opinions”; “was very obstinate,” “not
involved at all,” and “wanted to call it quits” as soon as
“midafternoon” on the first day of deliberations; “made up her mind”
early in the deliberation process, but refused to explain her opinions
or the reasoning behind them; had physically removed herself from
the table and refused to participate in discussions; sat in the corner
of the room and would not make eye contact with other jurors; and
refused to consider or listen to the views of other jurors, deliberate
with an open mind, or review all of the evidence presented at trial.
Jurors testified that L.M.’s behavior was “disruptive to moving
forward in [the] deliberation process” because, although it did not
prevent them from considering the evidence and the law, it forced
them to “operat[e as] an eleven member jury.” L.W. clarified that
13
L.M. was “[o]nly disruptive in the sense that in order to deliberate
it must be every person on the jury to reach a unanimous decision,
so only disruptive in that sense, not in a loud, demonstrative sense.”
One juror testified that L.M. may not have voted:
I didn’t know that she had chosen not guilty on some of
the ones that she read out today, when we were all here
together? Because she keeps saying I don’t know. I don’t
know. I don’t know. So we couldn’t really put it down as a
not guilty or a guilty when we were taking the votes. And
I’m not even sure I saw her hand go up on either of those
votes as we re-tallied them again this morning.
But another juror explained that not-guilty votes were not asked for:
“[W]e never did the opposite vote, and therefore the numbers that
are not on that sheet of paper we gave to you were not necessarily
votes for the opposing view, they were just not stated votes at this
time.”8
8 The dissent argues that this indicates that L.M. refused to vote, and
that her refusal to vote guilty or not guilty is another reason to have removed
her. But again, the trial court made no such finding (finding instead that she
made up her mind quickly, which is the opposite of refusing to decide).
Moreover, this testimony was not undisputed; L.M. testified that she voted on
every count. In context, the testimony on which the dissent relies is far from
clear. And there does not appear to be any evidence to support the idea that
L.M. had never voted; at most, the evidence supports the finding that the trial
court actually made: that L.M. stopped engaging (which would include voting)
at some point because she made up her mind.
14
L.M. testified that she was participating in deliberations and
that she was applying the law to the facts “to the best of [her]
knowledge.” When the trial court asked if there were disagreements
between her and the other jurors about the law and the facts, she
replied, “For me it’s more emotional, it’s a more emotional thing[,]”
adding that “[w]e have people back there crying and all of that.” She
explained further:
[B]efore we even just got into the box or whatever, it was
already guilty, you know and I’m — like I said in the note
I wrote you, I said maybe I got a ‘mis-concept’ of how the
law is and how things work and all that. That’s why I
asked to be switched out, because how I — in my mind,
how I got it, and how I look at things as the real evidence
as far as the gun and all this — maybe I watch too much
TV, I don’t know, but in my mind, this is how it’s set up.
And that’s what I explained to the other jurors. They had
all these different people here with different minds, and
it’s, like I said, maybe I got a misunderstanding on how
things work or — I’m not sure.
L.M. also was questioned by the trial court about her criminal
history, responding that she had pleaded guilty to a misdemeanor
simple battery charge and received a sentence of probation. She said
that she did not recall any voir dire questions that called for a
15
disclosure of this, saying she had never been convicted of a felony.
After the jurors returned to the jury room, the State moved the
trial court to remove L.M. from the jury. The defendants objected.
The trial court took a recess to consider all of the arguments and
testimony; during the break, L.M. sent another note to the trial
court (at approximately 5:10 p.m.) that stated: “Judge, with all
respect I am a residen[t] of Columbus, GA an[d] the way things just
took place, I don’t agree. I thought the jurors[’s] info [would] be
private, I did not sign[] up for this, and to get [thrown] under the
bus in front [of] the whole courtroom is a slap in the face.”
After another recess, the trial court granted the State’s motion
to remove L.M. In a subsequent written order, the trial court found
as follows:
[L.M.] did not threaten the other jurors nor did she
unduly pressure or intimidate them into changing their
opinions. However, through those same testimonies, it
was discovered that the foreperson was impeding the
jury’s progress as a whole in deliberating. It was stated
that as early as two hours into deliberations, L.M.
announced that she had made up her mind and then
removed herself from further discussions. According to
fellow jurors, L.M. removed herself from the table and
16
positioned herself in the corner of the room away from the
other jurors, and she refused to communicate her reasons
for her state of mind. She further stated that she would
not deliberate any longer and asked to be removed from
the jury. Multiple jurors stated that in order to proceed
with deliberations, they had to act as if it was an 11[-]
person jury, including when it came to voting on guilt or
innocence.
Before the trial court could inform the jury of its ruling,
however, the court received another note from L.M., which stated:
“We as the jury has [sic] come to a verdict. We are ready to
deliberate.” The defendants, once again, moved for a mistrial, which
the court denied. The court brought the jury back into the courtroom
and informed the jurors that the court would “not accept the
verdict.” Thereafter, the trial court removed L.M. from the panel and
replaced her with an alternate juror. McFarland and Young moved
again for a mistrial; Jones moved for a mistrial as well, and the trial
court denied the motions.
Deliberations with the alternate juror proceeded over the
course of three weekdays, although their commencement was
delayed due to tornado warnings, then the jury lost at least half a
17
day of deliberations due to the alternate juror experiencing a fall
that sent her to the hospital. On the third day, the jury announced
that it had reached unanimous verdicts, but during polling of the
jury and subsequent individual questioning, the alternate juror
stated that her verdicts as to Young and McFarland were not freely
and voluntarily made. The trial court charged the jury pursuant to
Allen v. United States, 164 U.S. 492 (17 SCt 154, 41 LE 528) (1896),
and later that day the jury returned verdicts of guilty on all counts
as to all defendants, with the alternate juror affirming in polling
that her verdicts were freely and voluntarily made.
(b) A trial court generally has broad discretion to remove a
juror for cause. But this discretion is narrowed once deliberations
have begun, and even more so when removing a dissenting juror
from a jury that appears to be divided.
The general rule on removing jurors for cause is statutory.
OCGA § 15-12-172 provides:
If at any time, whether before or after final submission of
the case to the jury, a juror dies, becomes ill, upon other
good cause shown to the court is found to be unable to
18
perform his duty, or is discharged for other legal cause,
the first alternate juror shall take the place of the first
juror becoming incapacitated.
As this Court has explained:
The question of whether to remove a juror is a matter
committed to the trial court’s discretion, even after jury
deliberations have begun. However, there must be some
sound basis upon which the trial court exercises his
discretion to remove the juror. A sound basis may be one
which serves the legally relevant purpose of preserving
public respect for the integrity of the judicial process.
Moon v. State, 312 Ga. 31, 36-37 (2) (860 SE2d 519) (2021) (citation
and punctuation omitted). “Both the need for investigation and the
possibility of harmful error are heightened when a jury has begun
deliberations or when a jury is deadlocked.” Id. at 37 (2) (citation
and punctuation omitted). And “because removing a dissenting juror
when the jury is deadlocked risks violating a defendant’s right to a
unanimous verdict, a trial judge must exercise the utmost care in
determining that good cause exists before removing the juror.” Id. at
37 (2) (citing Ramos v. Louisiana, __ U.S. __ (140 SCt 1390, 1397,
206 LEd2d 583) (2020); and United States v. Brown, 996 F3d 1171,
19
1184 (11th Cir. 2021) (en banc)).9
Georgia appellate decisions reviewing the removal of jurors
during deliberations reveal a general rule for the removal of holdout
jurors during deliberations: such a juror may be removed after
sufficient investigation supports findings establishing proper
reasons unrelated to the juror’s view of the trial evidence, but a juror
may not be removed for reasons related to the juror’s view of the
trial evidence, even if the juror’s insistence on that view has negative
effects on other jurors and the jury’s deliberations. Many cases have
affirmed removal during deliberations for reasons unrelated to the
juror’s view of the trial evidence. See, e.g., Jones v. State, 307 Ga.
463, 465-466 & n.5 (2) (835 SE2d 620) (2019) (no abuse of discretion
in removal of juror during deliberations where juror said she was
unable to deliberate; “the trial court explicitly acknowledged that it
9 The dissent cites our case law for the general proposition that a
criminal defendant has no vested interest in the service of any particular juror.
See Reynolds v. State, 271 Ga. 174, 175 (2) (517 SE2d 51) (1999) (affirming
dismissal of juror after trial began but before deliberations when juror realized
he was disqualified). But the dissent cites no case law that supports the
application of this rule to remove a holdout juror during deliberations, and
such an application would squarely conflict with Moon and other decisions of
this Court.
20
would be inappropriate to release the juror at issue merely because
she was a lone holdout”); Allen v. State, 297 Ga. 702, 704 (3) (777
SE2d 680) (2015) (no abuse of discretion in removal during
deliberations where “removed juror (1) stated several times that she
did not want to form an opinion about the case, and (2) further stated
that she was actually incapable of making the decision in the case
because she could not ‘play God’ and because her moral beliefs
precluded her from making a decision in the case”); Moon v. State,
288 Ga. 508, 513 (5) (705 SE2d 649) (2011) (no abuse of discretion in
removal during deliberations where holdout juror “was not removed
for refusing to deliberate but because of concerns over her
truthfulness and impartiality as well as her extra-judicial
comments”; evidence showed she knew defendants and many
witnesses, but had not “let on during voir dire,” and referred to one
witness as a drug dealer even though no evidence of such was
presented); Carr v. State, 282 Ga. 698, 702 (4) (653 SE2d 472) (2007)
(no abuse of discretion in removal during deliberations when “juror
did not promptly inform the court when it became clear that his voir
21
dire representation that he did not know any of [defendant’s]
relatives was incorrect”); State v. Arnold, 280 Ga. 487, 487, 489-490
(629 SE2d 807) (2006) (no abuse of discretion in removal of juror
where the juror “questioned the impartiality of the trial court and
humiliated, insulted, and cursed at other jurors during
deliberations,” including “actively humiliating other jurors through
the use of vindictive personal attacks wholly unrelated to the
important issues being considered by the jury”);10 Williams v. State,
272 Ga. 828, 830 (5) (537 SE2d 39) (2000) (no abuse of discretion in
removal during deliberations of juror who “stated she could not
deliberate because her religious beliefs prevented her from judging
another person”); Thompson v. State, 260 Ga. App. 253, 257-260 (5)
(581 SE2d 596) (2003) (no abuse of discretion in removal during
deliberations of lone holdout juror and first alternate juror when
trial court found the two engaged in effort to subvert jury, including
by attempted bribery of third juror); Alford v. State, 244 Ga. App.
10The dissent relies heavily on Arnold. But the trial court’s findings here
prevent any real similarity between L.M. and the juror in Arnold.
22
234, 238 (534 SE2d 103) (2000) (removal during deliberations not
abuse of discretion when trial court removed juror “only after [juror]
made it clear that he would not participate in any discussions with
his fellow jurors and kept repeating that he wanted ‘off’ the jury,”
and juror “never stated that he believed the defendants were
innocent but rather described problems dealing with his fellow
jurors and participating in deliberations”); Cloud v. State, 235 Ga.
App. 721, 721-722 (1) (510 SE2d 370) (1998) (no abuse of discretion
in removal during deliberations when juror requested removal,
cried, and said he could not judge the defendant, and the record
provided “no support for [defendant’s] contention that the juror was
actually expressing his view of [defendant’s] innocence”); Norris v.
State, 230 Ga. App. 492, 495-496 (5) (496 SE2d 781) (1998) (no abuse
of discretion in removal during deliberations where juror falsely
denied during voir dire having been in abusive relationships, and
during deliberations displayed bias arising from that history);
McGuire v. State, 200 Ga. App. 509, 510 (3) (408 SE2d 506) (1991)
(no abuse of discretion in removal during deliberations where juror
23
visited crime scene in violation of judge’s instructions and urged
other jurors to vote based on juror’s extrajudicial observations).
On the other hand, a number of Georgia appellate decisions
have concluded that the trial court abused its discretion in removing
a juror during deliberations when the removal was for a reason
related to a juror’s view of the evidence, or when the trial court’s
investigation was insufficient to conclude with confidence that the
reason for removal was unrelated to the juror’s view of the evidence.
In other words, a juror’s view of the evidence is not the sort of
“legally relevant purpose” our case law requires before removing
that juror, even when the juror’s view of the evidence has a negative
effect on deliberations. See, e.g., Moon, 312 Ga. at 36-50 (2) (trial
court abused discretion in removal of a holdout juror when all jurors
made up their minds quickly and trial court’s contemporaneous
statements about the juror’s misconduct were not supported by
findings); Mills v. State, 308 Ga. 558, 559-563 (2) (842 SE2d 284)
(2020) (trial court abused discretion in removal of holdout juror who
said she would change her mind only if the State had a clear-
24
resolution video of the crime; trial court found this constituted
failure to follow instructions on burden of proof, but it was not);
Delgado v. State, 356 Ga. App. 625, 629-630 (848 SE2d 665) (2020)
(trial court abused discretion in removal of holdout juror who
participated in deliberations for five hours before making up his
mind and disengaging from further deliberations); Semega v. State,
302 Ga. App. 879, 880-882 (1) (691 SE2d 923) (2010) (trial court
abused discretion in removal of holdout juror about five hours into
deliberations; foreperson testified juror would not consider all the
evidence, but the juror testified he did consider all the evidence, and
trial court should have investigated further before simply crediting
foreperson); Mason v. State, 244 Ga. App. 247, 248 (1) (535 SE2d
497) (2000) (trial court abused discretion in removal of holdout juror
who arrived at conclusion and, after two days of deliberations,
refused to participate further and asked to be removed, going so far
as to leave the jury room and wait in the courtroom); Stokes v. State,
204 Ga. App. 141, 142 (1) (418 SE2d 419) (1992) (trial court abused
its discretion in removal of two jurors who refused to vote after 30
25
minutes of deliberations when only the evidence of why they refused
was the foreperson’s statement that they felt there was “not enough
evidence either way,” which indicated that “those two jurors either
had reasonable doubt about [defendant’s] guilt or were confused
about the meaning of reasonable doubt,” and court should have
either recharged the jury as to burden of proof and continued
deliberations or declared a mistrial; removal of jurors “who may
have harbored reasonable doubt” was “extraordinary”).
In one sense, this case could perhaps have fit in either of these
two lines of cases: while the evidence the trial court developed
during its investigation could have supported findings that would
place this case in the line allowing removal, the findings the trial
court actually made instead placed it squarely in the line prohibiting
removal. There was sufficient testimony from which the trial court
could have found that L.M. insulted, threatened, unduly pressured,
and intimidated other members of the jury, the sort of behavior
unrelated a juror’s view of the evidence that we have held can justify
removal; indeed, the State and the dissent rely in part on this point
26
in defending L.M.’s removal. But the State and dissent fail to
grapple with the fact that the trial court made no such finding. To
the contrary, the trial court expressly found that L.M. “did not
threaten the other jurors, nor did she unduly pressure or intimidate
them into changing their opinions,” and made no finding at all about
insults. 11 Although some jurors reported that L.M. had threatened,
insulted, or pressured them in some way, “credibility of witnesses
and the weight to be given their testimony is a decision-making
power that lies solely with the trier of fact.” Tate v. State, 264 Ga.
53, 56 (3) (440 SE2d 646) (1994). “The trier of fact is not obligated to
believe a witness even if the testimony is uncontradicted and may
accept or reject any portion of the testimony.” Id. Because the trial
court did not find that L.M. threatened or insulted others, we cannot
11 The motion-for-new-trial judge concluded in his order denying the
motion for new trial that the trial judge’s statements in this regard “are also
properly interpreted as a finding that the pressure and intimidation described
by the four jurors did not cause any of them to change their opinions of the
evidence” and “is not the same as saying that pressure and intimidation were
not exerted[.]” But the trial court plainly found that L.M. had not threatened
anyone.
27
affirm her removal on this basis.12
Instead, the trial court based its removal of L.M. on four
related findings: (1) she ceased deliberating after making up her
mind as early as two hours into deliberations, (2) she refused to
communicate her reasons for her conclusion, (3) she sought to
physically distance herself from the other members of the jury, and
(4) she asked to be removed from the jury. Even assuming these
findings are supported by the record, 13 they are insufficient to
12 The dissent asserts that the trial court made implicit findings about
L.M.’s behavior impeding deliberations, but does not explain how any findings
were necessarily implicit in the court’s written order, much less how we can
read unnecessary implicit findings into the order containing explicit findings.
Our general presumption that trial courts make permissible implicit findings
that support their orders is a presumption that applies “in the absence of
explicit factual and credibility findings by the trial court[.]” Davis v. State, 306
Ga. 430, 432 (831 SE2d 804) (2019). No such absence exists in this case.
Moreover, the testimony by four jurors that L.M. insulted other members of
the jury was disputed by L.M. and the other seven jurors, who all testified that
no incidents of insult occurred. “[A]n appellate court generally must limit its
consideration of the disputed facts to those expressly found by the trial court.”
Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015).
The dissent also criticizes us for “seem[ing] to credit L.M.’s statements
that she was participating in deliberations and considering the evidence[.]” Not
so. Even the trial judge’s findings indicated that L.M. had participated in
deliberations for at least two hours: “It was stated that as early as two hours
into deliberations, L.M. announced that she had made up her mind and then
removed herself from further discussions.”
13 The basis for the trial court’s finding that L.M. stopped deliberating
after two hours is unclear.
28
support removal. Each of these findings is part and parcel of the
notion that L.M. reached a firm conclusion as to the counts before
the jury and declined to deliberate further. Although the dissent
makes much of the trial court’s finding that L.M. was “impeding the
jury’s progress as a whole in deliberating,” the court made no finding
that L.M. prevented other jurors from deliberating, and the context
of that finding strongly suggests that the court meant that L.M. was
impeding deliberations in the sense that the jury was unable to
reach a unanimous verdict given her unwillingness to participate in
further discussions. We are not aware of any decision of this Court
holding that a juror’s having arrived at a firm conclusion based on
the trial evidence — or arriving at that conclusion too quickly after
deliberations begin — constitutes good cause for removal. Indeed,
“once a juror has heard the evidence, the arguments of counsel, and
the court’s instructions on the law, there is no requirement that the
juror spend any particular length of time deliberating before
forming an opinion as to the defendant’s guilt or innocence.” Moon,
312 Ga. at 46 (2) (b) n.7.
29
With one possible exception, the limited case law on which the
State relies does not support L.M.’s removal.14 And, as explained
below, we expressly disapprove that one possible exception, Bethea
v. State, 337 Ga. App. 217 (786 SE2d 891) (2016), to the extent that
it could be read as inconsistent with the general rule we have found
in Georgia case law.
In Jones, we concluded that the trial court acted within its
discretion in removing a juror who asked to be removed, “repeatedly
broke down” when questioned by the court, and told the court she
was unable to continue to deliberating. 307 Ga. at 465-466 (2). But
there was no indication in that opinion that the reason the juror felt
that she was unable to continue was that she had reached a firm
conclusion at odds with her fellow jurors. Indeed, we made clear in
that case that “it would be inappropriate to release the juror at issue
14 The District Attorney makes a substantive argument about only two
cases, Bethea and Mayfield v. State, 276 Ga. 324 (578 SE2d 438) (2003), citing
a third case only for the applicable standard of review. The Attorney General
cites no cases for anything other than generally applicable standards, but we
interpret generously the parentheticals for two of those cases, Mills and Jones,
as containing some kind of case-specific argument.
30
merely because she was a lone holdout” and noted the juror’s
unhappiness with another juror. Id. at 466 (2) n.5.
In Mills, we held that a trial court abused its discretion in
removing a holdout juror who said that she would change her mind
only if the State could present a clear-resolution video of the crime.
See 308 Ga. at 559-563 (2). The trial court found that this
constituted failure to follow the court’s instruction on the burden of
proof, but we disagreed, in part due to an insufficient investigation.
See id. Nothing in Mills supports the State’s argument; the trial
court here made no finding about any failure by L.M. to follow
instructions.
In Mayfield v. State, 276 Ga. 324 (578 SE2d 438) (2003), we
affirmed a trial court’s decision to investigate and then give an Allen
charge instead of remove a juror or grant a mistrial; in that case, a
note from the jury accused a juror of refusing to apply the law, and
then later a juror threatened violence. See id. at 326-331 (2).
Nothing in Mayfield supports the State’s argument; the trial court
in Mayfield did not remove a juror, and, in any event, the trial court
31
here found that L.M. did not threaten anyone and did not find that
she refused to follow the law.
Finally, the State cites Bethea, a Court of Appeals decision that
affirmed the removal of a juror based in part on the trial court’s
conclusion that the juror had “reached a fixed and definite opinion”
early in determinations, apparently after “fewer than two hours.”
337 Ga. App. at 219-220. But we have cited that case only once, in a
“Compare” cite that characterized the juror removed therein as
having “formed an unwavering opinion before fully vetting the
evidence[.]” Moon, 312 Ga. at 47 (2) (b). Our uncritical citation of
Bethea in that fashion did not adopt all of its reasoning. And to the
extent that Bethea holds that a juror’s refusal to deliberate further
once she has made up her mind after two hours of deliberations is
good cause to remove her, we decline to adopt that holding now.
Bethea states generally that “[l]egal cause for excusing a juror
arises when the court determines, in its sound discretion, that the
juror holds an opinion so fixed and definite that he or she cannot lay
it aside and decide the case on the evidence presented and the court’s
32
charge.” 337 Ga. App. at 219 (citation and punctuation omitted). For
that proposition and others, however, Bethea relies on Georgia
appellate opinions involving questions about the removal of jurors
prior to the start of deliberations. See id. at 219 nn.6-9 & 11.
“Because a juror’s verdict must be based on the evidence in the case,
a trial court may excuse for cause a prospective juror who has formed
a fixed opinion as to the defendant’s guilt or innocence prior to
hearing any evidence in a case.” Moon, 312 Ga. at 46 (2) (b) n.7
(emphasis in original); see also Edmonds v. State, 275 Ga. 450, 453
(2) (569 SE2d 530) (2002) (“In order for a potential juror to be
excused for cause, see OCGA § 15-12-164 (a), the person must be
shown to hold an opinion of the guilt or innocence of the defendant
that is so fixed and definite that the person will be unable to set the
opinion aside and decide the case upon the evidence or the court’s
charge upon the evidence.”); Willis v. State, 12 Ga. 444, 446 (1)
(1853) (“The question then is, whether the formation and
entertaining of a fixed opinion, either for or against the prisoner,
will disqualify the Juror. We now rule for the first time that it will.”);
33
OCGA § 15-12-164 (providing that prospective jurors for felony trials
must be asked during voir dire whether they have “formed and
expressed any opinion in regard to the guilt or innocence of the
accused” and that a juror’s answer to that question may make the
juror “incompetent” and subject to being set aside for cause).
This Court also has held that good cause to remove a selected
juror who has reached a “fixed and definite” opinion of guilt or
innocence can be established after jury selection, before the start of
deliberations. See Butler v. State, 290 Ga. 412, 417-418 (5) (721
SE2d 876) (2012). Indeed, a juror or prospective juror who holds a
fixed opinion about guilt or innocence before the evidence is
complete and the judge has charged the jury has necessarily arrived
at that opinion improperly, because that opinion is necessarily based
on something other than all the evidence and the judge’s charge. But
it makes no sense to extend that same proposition to a juror who has
reached a fixed opinion after listening to all of the evidence and the
judge’s charge, and engaging in deliberations. Such a juror may have
done precisely what we expect jurors to do — consider the law and
34
evidence, and thereby reach a conclusion with a high level of
personal confidence.
Bethea can be read in two different ways. First, it can be read
consistent with Georgia law as affirming the removal of a juror who
refused to decide the case based on the trial evidence. See 337 Ga.
App. at 219-220 (noting trial court’s concern that juror reached a
decision “without fully vetting the evidence with the other jurors,”
and stating that good cause for removing exists when “juror holds
an opinion so fixed and definite that he or she cannot lay it aside
and decide the case on the evidence presented and the court’s
charge” (citation and punctuation omitted)). But Bethea can also be
read to conclude that a juror may be removed for deliberating for
what the court deems an insufficient amount of time before arriving
at a conclusion. See id. (citing as reasons for removal that “she had
reached an unwavering opinion fewer than two hours into the
deliberation,” “very early on, the juror had ceased deliberating with
the other members of the jury,” and “the juror held a fixed and
definite opinion so early in the process”). We expressly disapprove
35
as inconsistent with Georgia law this second interpretation of
Bethea. 15
Georgia law does not require a juror who has properly reached
a fixed opinion as to guilt or innocence to continue to deliberate
indefinitely in order to fulfill the juror’s duty. See Moon, 312 Ga. at
46 n.7; Delgado, 356 Ga. App. at 629-630; Semega, 302 Ga. App. at
880-883 (1). At some point a juror who has reached and
communicated a firm conclusion as to guilt or innocence may stop
engaging with other jurors in deliberations.16 Most people lack the
fortitude to debate an issue with strangers indefinitely. That does
not mean that they are “unable to perform [their] duty” within the
meaning of OCGA § 15-12-172.17
15 The dissent agrees with this disapproval while still relying on Bethea
as support for its conclusion. But only the now-disapproved reading of Bethea
supports the dissent.
16 If a juror has a fixed view immediately upon beginning deliberations,
that might support a finding that the juror developed that view previously
based on something other than the complete trial evidence and the law. But
this is not such a case, and the trial court made no such finding.
17 We also note that this Court has affirmed guilty verdicts reached in
less than two hours in murder and other serious felony cases. See Franklin v.
State, 303 Ga. 165 (810 SE2d 118) (2018) (affirming murder conviction on
verdict reached after 90 minutes of deliberations); Jones v. State, 243 Ga. 82036
And although the trial court also found that L.M. “asked to be
removed from the jury,” a point that has supported removal in
several other Georgia cases, that request does not support removal
here. That request was made in a note sent to the court, and the
relevant text of the note made clear that the request was a result of
L.M.’s firm conclusion that the evidence was insufficient to convict:
I’m not sure if I have a different understanding of the law
or what. I honestly feel that they do have some evidence
but not enough for me to say guilty. I’m not sure if I have
a different concept of how things work or what[] my duty
here is, I have been through the evidence[;] we have went
over it. I’m not sure what y[’]all want from me, only thing
happening now is, I’m getting force[d] to follow what
everyone else is saying. Can I be switch[ed] with an
alternate so y[’]all can get the answer you’re looking for.
I’m firm!
A juror cannot be removed from a jury based on his or her request
to be removed when that request is based on a “firm” conclusion that
the evidence is insufficient to convict. Compare Smith v. State, 266
(256 SE2d 907) (1979) (upholding murder conviction and death sentence where
jury reached guilty verdict after 50 minutes and death penalty
recommendation after 58 minutes); Jones v. State, 233 Ga. 662 (212 SE2d 832)
(1975) (affirming rape convictions based on verdicts reached after 13 minutes
of deliberations).
37
Ga. 827, 829 (2) (470 SE2d 674) (1996) (affirming removal when
juror informed court she could not fulfill her duties as a juror
because she had to undergo emergency dental surgery); Alford, 244
Ga. App. at 238 (affirming removal when juror kept repeating that
he wanted to be removed and “never stated that he believed the
defendants were innocent but rather described problems dealing
with his fellow jurors and participating in deliberations”); and
Cloud, 235 Ga. App. at 722 (1) (affirming removal when juror
requested removal, cried, and said he could not judge the defendant,
and the record provided “no support for [defendant’s] contention that
the juror was actually expressing his view of [defendant’s]
innocence”); with Mason, 244 Ga. App. at 247-250 (reversing
removal when juror concluded defendant was not guilty, but
requested to be removed because she needed to get back to her
business and if she were required to continue deliberating, she
“might change her vote to go along with the majority” even though
“her opinion about the case would not change”).
Because the trial court abused its discretion in removing L.M.
38
from the jury, we conclude that Jones’s and McFarland’s convictions
must be reversed. See Moon, 312 Ga. at 50 (2) (reversing convictions
where trial court abused its discretion in removing juror during
deliberations); Mills, 308 Ga. at 562-563 (2) (“Dismissal of a juror
without any factual support or for a legally irrelevant reason is
prejudicial.” (citation and punctuation omitted)).
3. Although we conclude that Jones and McFarland are
entitled to new trials based on the trial court’s handling of the juror
issue, we must consider McFarland’s argument that the evidence
was constitutionally insufficient to sustain his convictions, as retrial
would be precluded were he correct on this point. We conclude that
the evidence is constitutionally sufficient.
McFarland specifically argues that the evidence was
constitutionally insufficient as to him under Jackson v. Virginia, 443
U. S. 307 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), because the
State failed to show that he was a party to the crimes. When
evaluating the sufficiency of evidence as a matter of constitutional
due process, “the relevant question is whether, after viewing the
39
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 319 (III) (B) (emphasis omitted).
Moreover, “criminal intent is a question for the jury, and it may be
inferred from [the defendant’s] conduct before, during, and after the
commission of the crime.” Jones v. State, 292 Ga. 656, 658 (1) (a)
(740 SE2d 590) (2013). Also, “[w]hile mere presence at the scene of
a crime is not sufficient evidence to convict one of being a party to a
crime, criminal intent may be inferred from presence,
companionship, and conduct before, during, and after the offense.”
Parks v. State, 304 Ga. 313, 315 (1) (a) (818 SE2d 502) (2018)
(citation and punctuation omitted).
Here, the State presented sufficient evidence that McFarland
was a party to the crimes charged. The State provided evidence that
McFarland belonged to a criminal street gang and that he had a
motive to avenge the killing of a senior gang member. Cellphone
evidence showed that McFarland was in contact with Jones and
Young before and immediately after the crimes. It also placed him
40
in the area of Peachtree Mall at the time of the crimes, which
directly contradicted McFarland’s statement to the police wherein
he denied being present at the mall at the time of the shooting. The
cellphone evidence showed him moving in the same direction as
Jones and ending in the vicinity of an address Jones had texted to
Young after the shooting. Finally, surveillance video showed Jones,
Young, and a third man meet in the mall parking lot. The video then
showed the group approach Meredith together, Jones shoot
Meredith, and the three flee the scene together after the shooting.
When viewed in the light most favorable to the verdicts, the
evidence presented at trial was sufficient as a matter of
constitutional due process to authorize a rational jury to find
McFarland guilty beyond a reasonable doubt of the crimes charged
based upon his being a party to the crimes. See OCGA §§ 16-2-20
(defining party to a crime); 16-5-1 (a) (defining malice murder); 16-
15-3 (defining “criminal street gang” and “criminal gang activity”).
Judgment reversed. All the Justices concur, except McMillian,
LaGrua, and Colvin, JJ., who concur in part and dissent in part.
41
COLVIN, Justice, concurring in part and dissenting in part.
Because I agree with the majority opinion’s conclusions that
the evidence was sufficient to sustain McFarland’s convictions, I
concur in Division 3. However, because the record shows that the
trial court had a sound legal basis for dismissing a juror who, single-
handedly, ground the deliberative process to a halt, our standard of
review mandates a finding that the trial court did not abuse its
discretion in this case. Accordingly, I respectfully dissent from
Division 2 and from the judgment reached in the majority opinion.
In my mind, the majority opinion’s analysis contains a
fundamental flaw in that it characterizes L.M. as a “holdout” juror.
As the majority opinion notes, when L.M. announced the vote tally,
the jury was undecided on all of the charges related to McFarland
and on one of the charges against Young. In other words, the jurors
were undecided on 5 of the 13 charges and they were attempting to
continue deliberating, but L.M. removed herself from all discussions
and became disruptive to the process, bringing deliberations to a
halt. While a juror can maintain her “not guilty” stance based upon
42
her view of the evidence and the law, she cannot impede the
deliberation process from proceeding so that no decision can be
reached. Further, during deliberations, jurors routinely return to
charges in the indictment and continue to debate and change their
minds. Consequently, a tentative vote of 11 guilty 1 not guilty can
change as the jurors continue to review and discuss the evidence
relating to the charges not yet decided. I do not suggest, as the
majority opinion represents, that the trial court had broader
discretion to remove L.M. “simply because one or more other jurors
may share that juror’s position.” Maj. Op. p. 10 n.5. In fact, the
record would not support such a finding because all of the jurors,
including L.M., testified that they did not take a complete vote tally
because they only counted the “guilty” votes on each charge. 18
Instead, it shows that the jury had no decision whatsoever on five of
the charges when L.M. decided to stop participating.
Turning to the removal issue, a “defendant in a criminal
18 The majority opinion notes that L.M. herself either refused to vote or
stated, “I don’t know” when the jury attempted to take votes on all of the
charges.
43
proceeding has no vested interest in the service of any particular
juror, but is entitled only to a legal and impartial jury.” Reynolds
v. State, 271 Ga. 174, 175 (517 SE2d 51) (1999).19 Under Georgia
law, “[a] trial court is statutorily vested with the discretion to
discharge a juror and seat an alternate juror at any time during the
proceedings, as long as the trial court has a sound legal basis to do
so.” Smith v. State, 284 Ga. 17, 22 (663 SE2d 142) (2008) (citing
OCGA § 15-12-172). See also Green v. Zant, 715 F2d 551, 555 (11th
Cir. 1983) (“There must be some sound basis upon which the trial
judge exercises his discretion to remove the juror.” (citation and
punctuation omitted)). “A sound [legal] basis may be one which
serves the legally relevant purpose of preserving public respect for
19 Contrary to the majority opinion’s assertion, our decision in Moon v.
State, 312 Ga. 31 (860 SE2d 519) (2021), does not stand for the proposition that
a criminal defendant has a vested interest in the service of a particular juror.
If this were true, then judges would never be able to exercise the discretion
granted to them by the General Assembly to remove a juror during
deliberations, because a criminal defendant would always have a vested
interest in every juror on the panel. Instead, Moon held that the trial court
abused its discretion because its removal “inquiry fell short and resulted in
dismissing [a juror] on a basis that was not legally sound.” Moon, 312 Ga. at
45.
44
the integrity of the judicial process.” Gibson v. State, 290 Ga. 6, 10
(717 SE2d 447) (2011) (citation and punctuation omitted). A trial
court’s decision to remove a juror under OCGA § 15-12-172 is
reviewed for an abuse of discretion, see Cummings v. State, 280 Ga.
831, 835 (6) (632 SE2d 152) (2006), and the court “has broad
discretion to determine whether it is appropriate” to do so, Smith v.
State, 298 Ga. 357, 360 (3) (782 SE2d 26) (2016). “[T]he trial court’s
determination in matters such as this is based on the demeanor and
credibility of the juror in question, which are peculiarly in the trial
court’s province.” State v. Arnold, 280 Ga. 487, 490 n.2 (629 SE2d
807) (2006) (citations and punctuation omitted).
Our case law is clear that a trial court abuses its discretion
when a juror is dismissed “without any factual support or for a
legally irrelevant reason.” Mills v. State, 308 Ga. 558, 560 (2) (842
SE2d 284) (2020) (citation and punctuation omitted). Indeed, the
cases relied upon by the majority for a finding of an abuse of
discretion fall into one of these two categories. See Moon v. State,
312 Ga. 31, 45 (b) (860 SE2d 519) (2021) (holding that the trial
45
court’s limited inquiry into a holdout juror’s possible incapacity did
not provide sufficient factual support to show that the juror’s
removal fell within a sound legal basis); Mills, 308 Ga. at 559-562
(2) (trial court abused its discretion for immediately removing a
holdout juror without conducting any inquiry into the juror’s alleged
incapacity so as to provide a sufficient factual basis for her removal);
Semega v. State, 302 Ga. App. 879, 879-882 (1) (691 SE2d 923) (2010)
(“Given that the jury was deadlocked, the trial court should not have
relied solely on the foreperson’s assertion that a juror was refusing
to participate, but should have conducted further inquiry before
replacing the juror with an alternate.”). See also Delgado v. State,
356 Ga. App. 625, 629-630 (848 SE2d 665) (2020) (trial court abused
its discretion by removing lone holdout juror without a sound legal
basis as the juror “did not fail to fulfill his obligations as a juror, but
rather had reached a decision, . . . after meaningfully deliberating
and trying to reach a verdict”); Mason v. State, 244 Ga. App. 247 (1)
(555 SE3d 497) (2000) (no sound legal basis for juror removal where
there “was no showing that the juror was unable to fulfill her
46
duties,” “the juror’s statements that she did not want to deliberate
further and would not change her vote did not amount to a refusal
to deliberate,” and the juror’s concern “about getting back to her
business . . . [did] not amount to a legal cause for dismissal”); Stokes
v. State, 204 Ga. App. 141, 141 (418 SE2d 419) (1992) (trial court
abused its discretion in removing two jurors where “[t]here was no
showing that the jurors were in any way incapacitated or unable to
fulfill their duties and no other legal cause was shown,” and where
the trial court failed to develop any factual basis to support the
jurors’ removal).
This is not a case where the trial court removed a juror without
factual support. Compare Moon, supra; Mills, supra; Semega,
supra; Stokes, supra. Instead, the trial court properly followed our
case law by performing a comprehensive inquiry into the allegations
of misconduct – he questioned the entire jury panel and then
thoroughly questioned L.M. and the jurors who had alleged the
misconduct, including asking jurors to make written accounts of the
47
behavior they witnessed.20 This investigation created extensive
factual support for the trial court’s ultimate decision to remove L.M.,
and the majority opinion concedes that there are ample facts in the
record to support removal.
Despite this, the majority opinion narrowly reads the trial
court’s order before concluding that the trial court abused its
discretion by removing L.M. from the jury. But “[o]n appeal, the
question is whether evidence supports the trial court’s
determination [for removing the juror].” Butler v. State, 290 Ga.
412, 417-418 (5) (721 SE2d 876) (2012). Indeed, the majority’s
conclusion that “[t]his case seemingly has one foot in each line of
cases” regarding juror removal requires that we affirm the decision
to remove because of the deference we owe to the trial court.
Giving the trial court’s credibility determinations and factual
findings the proper deference, considering the totality of the
circumstances as borne out by the court’s extensive investigation,
20 The inquiry itself spanned approximately 45 pages of the trial
transcript.
48
and reading the court’s order as a whole, I must conclude that the
trial court did not abuse its discretion when it removed L.M. from
the jury for impeding the deliberative process. The record shows
that L.M. refused to deliberate early on, 21 though the rest of the jury
was split on 5 of the 13 charges; physically removed herself from
conversing with the other jurors; refused to consider the views of
others, explain her own opinions or views to the other members of
the panel, or fully participate in the voting process; asked to be
removed from the jury panel; insulted other jurors, causing a
chilling effect in the jury room; was “disruptive to moving forward
in [the] deliberation process” because, while her behavior did not
prevent jurors from considering the evidence and the law, it forced
them to “operat[e as] an eleven member jury”; and that her
disagreements with other jurors were “emotional” rather than based
21 While there is a discrepancy between the trial court’s order and the
record as to whether L.M. stopped deliberating after “two hours” or after “a few
hours,” that discrepancy is not material to the trial court’s ruling. What
matters is L.M.’s refusal to continue deliberating while the rest of the jury was
attempting to consider the evidence and the law and applying the same to all
of the charges against all of the defendants.
49
on the law or the facts. Based on the foregoing, I conclude that the
trial court conducted a thorough investigation into L.M.’s
interference in the deliberative process and “developed a factual
basis for its decision to remove [L.M.] for a legally relevant purpose.”
Gibson, 290 Ga. at 10.
Still, the majority opinion seems to credit L.M.’s statements
that she was participating in deliberations and considering the
evidence in order to conclude that the trial court abused its
discretion by removing her. However, the trial court is not required
to ignore the evidence from the other jurors that L.M. was not
deliberating, nor does L.M.’s testimony “make the trial court’s
[implicit] credibility decision to strike” her erroneous. Butler, 290
Ga. at 418. See Cummings, 280 Ga. at 834-835 (trial court did not
abuse its discretion in replacing a juror for good cause based on the
“totality of the circumstances”).22 Moreover, “we owe substantial
deference to the way in which the trial court resolved disputed
22Further, neither Jones nor McFarland “contend that the alternate
juror who replaced [L.M.] was not qualified to serve.” Butler, 290 Ga. at 418.
50
questions of material fact.” Hughes v. State, 296 Ga. 744, 750 (770
SE2d 636) (2015). While we may also “take notice of the undisputed
facts – even if the trial court did not – without interfering with the
prerogative of the trial court to resolve disputes of material fact,” id.at 747 n.4, appellate courts cannot “make alternative findings of fact
that are contrary to those explicitly or implicitly made by the trial
court where other evidence exists that supports the trial court’s
findings,” Mathenia v. Brumbelow, 308 Ga. 714, 716 n.3 (843 SE2d
582) (2020). By finding that the trial court abused its broad
discretion in this case, the majority opinion ignores the substantial
deference we owe to the trial court’s explicit and implicit findings
concerning disputes of material fact.
Further, I disagree with the majority opinion that the trial
court did not have a sound legal basis to remove L.M. Though the
majority opinion categorizes the trial court’s findings as “part and
parcel to the notion that L.M. reached a firm conclusion . . . and
declined to deliberate further,” Maj. Op. p. 29, the trial court’s order
broadly concluded that L.M. “was impeding the jury’s progress as a
51
whole in deliberating.” In order to narrowly interpret this broad
finding of the trial court, the majority opinion concludes that “the
context of that finding makes clear that the court merely meant that
L.M. was impeding deliberations in the sense that the jury was
unable to reach a unanimous verdict given her unwillingness to
participate in further discussions.” Id. Yet the majority opinion’s
interpretation is belied by the record. Although it appears that
other jurors had reached an initial consensus as to Jones, the trial
court and the jury were considering the case as it applied to all three
defendants. To that end, the record shows that the jury was deeply
divided on all of the counts against McFarland and on the Gang Act
charge as it applied to Young. Despite having no consensus on these
charges, L.M. refused to continue deliberating. She, among other
things, physically removed herself from discussions, would not make
eye contact with any jurors, refused to cast a vote, and asked to be
removed from the jury while there was still much work to be done.
In other words, whether L.M. was preventing other jurors from
deliberating is of no consequence, because, as the trial court found,
52
she was subverting the deliberative process as a whole.
Both this Court and the Court of Appeals have recognized that
removal of a juror who was inhibiting the deliberative process is a
sound legal basis for removal because it “serves the legally relevant
purpose of preserving public respect for the integrity of the judicial
process.” Arnold, 280 Ga. at 489-490 (no abuse of discretion for
removal of juror “who unduly disrupts and prevents the ongoing
deliberative process”). See also Bethea v. State, 337 Ga. App. 217,
219-220 (786 SE2d 891) (2016) (to the extent that it holds that a trial
court does not abuse its discretion for dismissing a juror who refuses
to participate in deliberations);23 Thompson v. State, 260 Ga. App.
253 (5) (581 SE2d 596) (2003) (no abuse of discretion for removal of
juror where the trial court’s investigation revealed that the hold-out
juror “was connected to an ongoing attempt to subvert the jury” and
that “the deliberative process of the jury was under attack”); Alford
v. State, 244 Ga. App. 234, 236-237 (534 SE2d 103) (2000) (no abuse
23I agree with the majority opinion’s disapproval of Bethea to the extent
that it improperly extended Georgia’s “fixed and definite” case law to the
removal of jurors after deliberations have begun. Maj. Op. pp. 32-36.
53
of discretion for removing juror where that juror was antagonistic to
other jurors, refused to participate in discussions or explain his
opinions, and “wanted off” the jury); Jones v. State, 307 Ga. 463, 466
(2) (835 SE2d 620) (2019) (no abuse of discretion for removal of juror
who had “stopped participating in deliberations”).
Because removal of a juror for impeding the deliberative
process provides a sound legal basis for removal, and because the
trial court developed sufficient facts in the record to support its
reasoning for removal, I must conclude that the trial court did not
abuse its discretion by removing L.M. from the jury. Because I
would affirm the decision of the trial court, I dissent as to Division
2 and in the judgment of the Court. 24
I am authorized to state that Justice McMillian and Justice
LaGrua join in this opinion concurring in part and dissenting in
part.
I also see no basis in the other enumerations of error raised by Jones
24
and McFarland for reversal of the judgment in this case.
54