Hargett v. State

151 Ga. App. 532 (1979) 260 S.E.2d 406

HARGETT
v.
THE STATE.

58123.

Court of Appeals of Georgia.

Submitted July 2, 1979. Decided September 26, 1979.

Frank B. Hester, for appellant.

M. Randall Peek, District Attorney, for appellee.

SHULMAN, Judge.

The sole enumeration of error in this appeal, brought following a jury verdict finding appellant guilty of armed robbery, concerns whether the trial court's action in polling certain jurors without the presence of defense counsel deprived appellant of his constitutional rights to due process of law and to effective assistance of counsel. Since we find that this enumeration affords no grounds for reversal, we affirm.

On appellant's timely demand, with both defense counsel and the defendant present, the trial court polled the jury. See McDuffie v. State, 54 Ga. App. 261 (3) (187 S.E. 672). Upon the court's completion of polling and with the acquiescence of counsel, the court allowed the jury to remain in the courtroom during the sentencing phase of the trial. Approximately two hours after sentence was imposed and the courtroom was vacated, the court's inadvertent failure to poll two jurors was brought to the court's attention. After attempts to locate defense counsel proved unavailing, the court polled the two unpolled jurors outside the presence of defense counsel. Each indicated that the guilty verdict rendered by the jury was that juror's verdict in the jury room, his verdict at the time of the original poll of the jury that morning, and his verdict at the time of the second poll.

In view of defense counsel's presence at the first poll and of counsel's failure to apprise the court of any defect in the polling procedure, we hold that the absence of defense counsel at the post-sentence poll was not violative of any of appellant's constitutional rights to counsel or due process. Cf. Morton v. State, 190 Ga. 792 (2) (10 SE2d 836); Harrison v. State, 100 Ga. 264 (2) (28 S.E. 38). Compare Duke v. State, 104 Ga. App. 494 (2) (122 SE2d 127), where no attempt was made to locate counsel.

Judgment affirmed. Deen, C. J., and Carley, J., concur.