                            SECOND DIVISION
                              ANDREWS, P.J.
                         BRANCH and PETERSON, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    January 25, 2016




In the Court of Appeals of Georgia
 A15A1664. SMITH v. THE STATE.                                                PE-036C

      PETERSON, Judge.

      Irvin Dexter Smith, convicted of one count of burglary and one count of theft

by taking a motor vehicle, appeals from the denial of his motion for new trial. He

argues that the trial court erred when (1) it replaced a juror after discovering that she

was listed as a friend on Smith’s Facebook page, because there was no evidence that

the juror actually knew Smith or would be biased in his favor, and (2) by preventing

him from calling a witness to testify regarding the witness’s use of Facebook at the

motion for new trial hearing. We conclude that the trial court did not abuse its

discretion in dismissing the juror because she was connected to Smith via Facebook.

We also conclude that the testimony of Smith’s witness was irrelevant to show
whether Smith and the dismissed juror knew each other, and, thus, the trial court did

not abuse its discretion in excluding this witness’s testimony. Accordingly, we affirm.

        The record reflects that during jury selection, the State asked the members of

the venire, including Juror 4, whether they knew Smith. None of the prospective

jurors responded affirmatively. The selected jurors and their alternates were sworn

in and no objections to the jury were made.

        During jury deliberations, the trial court received a note from the jury

indicating that it was deadlocked. The trial court then gave an Allen charge to the

jury.

        After the jury returned to deliberate further, the State moved to replace Juror

4 because it had discovered that Juror 4 appeared as a friend on Smith’s Facebook

page. The State argued that Juror 4 should be dismissed because she did not respond

affirmatively when asked during jury selection whether she knew Smith. During the

trial court’s inquiry, Juror 4 initially stated that she rarely used Facebook and did not

believe she was friends with Smith on Facebook, but she later confirmed that her

profile appeared on Smith’s Facebook page as a friend.1 Based on Juror 4’s answers,

        1
        Facebook, one of the most popular social networking websites, allows users
to create profiles, join networks, and “friend” other users. Registered users create and
customize their own user profiles by adding content, including personal information,

                                           2
the trial court replaced her with an alternate. The jury subsequently returned a guilty

verdict on the counts of burglary and theft by taking a motor vehicle. This appeal

ensued.

      1. Smith contends that the trial court erred in dismissing Juror 4 during jury

deliberations because it failed to make a sufficient inquiry to establish any

misconduct to warrant her removal. We disagree.

      Under OCGA § 15-12-172, the trial court has discretion to replace a juror with

an alternate at any time, whether before or after final submission of the case to the

jury, provided the trial court has a sound legal basis to do so. Mathis v. State, 293 Ga.

837, 839 (1) (750 SE2d 308) (2013). This Court will not reverse a trial court’s

decision to remove a juror from a panel absent an abuse of discretion. Armstrong v.

State, 325 Ga. App. 33, 39 (5) (752 SE2d 120) (2013).

      A sound basis to remove a juror

      may be one [that] serves the legally relevant purpose of preserving
      public respect for the integrity of the judicial process. Where the basis
      for the juror’s incapacity is not certain or obvious, some hearing or


content related to their interests, and photographs and other media, which can then
be shared with other Facebook users. See generally Ehling v. Monmouth-Ocean Hosp.
Serv. Corp., 961 F. Supp. 2d 659, 662 (D.N.J. 2013) (providing further background
on using Facebook).

                                           3
      inquiry into the situation is appropriate to the proper exercise of judicial
      discretion. Dismissal of a juror without any factual support or for a
      legally irrelevant reason is prejudicial.


State v. Arnold, 280 Ga. 487, 489 (5) (629 SE2d 807) (2006) (citations and

punctuation omitted).

      Here, Smith objected to the State’s request to replace Juror 4, argued that the

juror was not specifically asked whether she had a meaningful connection to Smith,

and requested that the court conduct a further investigation before replacing her. The

trial court questioned Juror 4, who initially stated that she rarely used Facebook and

was not friends with Smith on Facebook. The trial court then dismissed Juror 4 “out

of an abundance of caution,” and Smith made one more objection, asking that the trial

court authenticate that Juror 4 actually appeared on Smith’s Facebook page. Juror 4

was shown the profile picture in question, and she confirmed that her profile appeared

as a friend on Smith’s Facebook page. The trial court replaced Juror 4 with no further

objections by Smith.

      The trial court did not abuse its discretion in replacing Juror 4. Regardless of

Juror 4’s reasons for failing to disclose her connection to Smith, the depth of her

relationship, and whether her failure to disclose constituted misconduct, Juror 4 was


                                           4
connected to Smith in some fashion and her veracity on the issue was in question. See

Cohen v. Baxter, 267 Ga. 422, 423 (479 SE2d 746) (1997) (the trial court is in the

best position to judge the credibility of the juror and, therefore, has significant

discretion to retain or dismiss a juror). Consequently, the trial court did not abuse its

discretion in replacing Juror 4. See Green v. State, 298 Ga. App. 301, 302 (1) (680

SE2d 156) (2009) (trial court did not abuse its discretion in removing a juror after

deliberations began because the juror failed to affirmatively respond to a jury

selection question, even though the juror claimed that his failure was an honest

mistake); Darden v. State, 212 Ga. App. 345, 347 (4) (441 SE2d 816) (1994) (trial

court did not abuse its discretion in removing a juror where the State had overlooked

the juror’s attempt to indicate during jury selection that she knew the defendants).

Because we conclude that the trial court did not err in replacing Juror 4, we need not

consider Smith’s argument that he suffered prejudice as a result, including his

argument that the alternate reduced the number of African-Americans on the panel.2




      2
        Although Smith mentions the racial composition of the panel in the context
of prejudice, he does not assert any independent claim regarding that composition,
whether under Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LEd2d 69) (1986),
or otherwise.

                                           5
      2. Smith also contends that the trial court erred at the motion for new trial

hearing by excluding as irrelevant the testimony of Sharon Lunsford, who he sought

to testify regarding her general experience using Facebook. Smith argues that

Lunsford’s testimony would establish that Facebook users may not actually know

people listed as their Facebook friends and would thus tend to show that Juror 4 may

not have actually known Smith.

      Relevant evidence generally shall be admissible, and relevant evidence is

“evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” OCGA §§ 24-4-401, 24-4-402. We review a trial

court’s evidentiary ruling for an abuse of discretion. Reeves v. State, 294 Ga. 673, 676

(2) (755 SE2d 695) (2014).

      Here, Smith argues only that Lunsford’s testimony about her own personal

Facebook experience supported the possibility that Juror 4 may have appeared on

Smith’s Facebook page without having known him. But, even if true, this is not

enough. No matter what Lunsford’s personal style of using Facebook might be, her

testimony regarding that style is not relevant to Juror 4’s personal style, and Smith did

not attempt to elicit relevant testimony on that subject from the only person able to

                                           6
give it – Juror 4. Consequently, the trial court did not abuse its discretion in excluding

the testimony as irrelevant.

      Judgment affirmed. Andrews, P. J., and Branch, J., concur.




                                            7
