In the Supreme Court of Georgia



                                                  Decided:         June 20, 2016


                      S16A0150. MURPHY v. THE STATE.


       THOMPSON, Chief Justice.

       Following a jury trial, appellant Sheree Dionne Murphy was found guilty

of five counts of felony murder, aggravated battery, arson in the first degree, and

cruelty to a child, all of which charges were related to a motel fire resulting in

the deaths of five people.1 She was sentenced to life in prison, and she now

appeals from the denial of her motion for new trial, asserting, among other

       1
         The crimes occurred on June 7, 2007. On June 17, 2009, appellant was indicted by
a Clayton County grand jury on five counts of malice murder, five counts of felony murder,
two counts of aggravated battery, arson in the first degree, cruelty to a child in the first
degree, and battery. Following a jury trial on December 5-13, 2011, appellant was found
guilty of all five felony murder counts, one count of aggravated battery, arson in the first
degree, and cruelty to a child. She was acquitted of the remaining charges. On January 30,
2012, the trial court sentenced appellant to five consecutive terms of life imprisonment on
the felony murder counts and 20 years for aggravated battery to run concurrent with her life
sentences. The trial court directed a verdict on the battery count and one count of aggravated
battery. The verdicts for arson and cruelty to a child merged into the felony murder counts.
Appellant filed a motion for new trial on December 20, 2011, which was amended on August
20, 2013, and denied on January 13, 2014. Appellant’s notice of appeal was filed on January
23, 2014. The case was docketed in this Court for the January 2016 Term and orally argued
on February 9, 2016.
things, that she was denied her constitutional right to be present at all critical

stages of the proceedings, that the State failed to provide her with notice prior

to trial of an expert opinion, see OCGA § 17-16-4 (a) (4), and that the guilty

verdicts were the result of (1) extrajudicial information improperly introduced

to jurors during their deliberations and (2) an outside influence that caused a

deliberating juror to surrender her vote for acquittal. After carefully reviewing

the record, we find no reversible error and affirm appellant’s convictions.

      1. The evidence presented at trial authorized the jury to find that on June

7, 2007, appellant, who was upset with a drug dealer because he would not

“front” her drugs, poured an accelerant on and set fire to a stack of mattresses

placed in a stairwell directly under the second floor motel room where the drug

dealer lived. Then fourteen-year-old Shae’von Butler lived on the second floor

of the same motel with her mother, Shakita Jones, her siblings, Devon Butler,

Jr. and Desha Butler, and her stepfather, Fred Colston, Jr. Shae’von’s uncle,

Melvin Jones, was also staying at the motel with the family. Shae’von and her

family members were unable to exit their room before being trapped in the

bathroom by fire and smoke, and everyone except Shae’von died from smoke

inhalation. Shae’von suffered severe burns to her face, hands, shoulders, and

                                        2
leg.

       Witness Starla Leigh Carr testified that on June 6, 2007, the day before the

fire, she saw appellant, who appeared angry, coming from the motel. Appellant

told Carr she was tired of how people treated her because no one would front her

drugs and that she (appellant) would come back and “burn this motherf-----

down.”2 Appellant spent that night at Carr’s apartment, located near the motel,

but she left between 3:00 a.m. or 4:00 a.m. and did not return until later that

morning. At around 7:15 a.m., another witness saw appellant and a man

walking up to the motel. Appellant was carrying a black plastic bag and had a

lighter and cigarettes. This witness asked appellant for a cigarette then saw her

walk toward the back of the motel where the mattresses were located. About 15

minutes later, the motel was on fire. Around 11:00 a.m., appellant told another

witness that the motel was on fire and that it started when someone set fire to

mattresses. A witness with whom appellant was incarcerated while awaiting

trial testified that appellant told her she set the motel fire because she was upset


       2
         Another witness, Natasha Allen, saw appellant at the Chevron gas station next to
the motel that evening. Appellant asked Allen and her friend for a ride, but when the friend
refused, appellant said she was going to “burn the bitch up.”


                                             3
with victim Colston about drugs.

      During their investigation, police went to a Chevron gas station near the

motel and discovered a can of Ronsonol brand lighter fluid was missing from

the store’s shelf. Surveillance video showed an individual matching appellant’s

height and clothing descriptions entering the store at 6:41 a.m. on the day of the

crimes and walking to the area where the lighter fluid was displayed. Another

video showed an individual walking across the motel parking lot at 6:59 a.m.

carrying something under her arm. After dogs trained to indicate the presence

of chemical accelerants alerted at the rear of the motel near the mattresses and

the stairwell leading to the second floor, fire investigators collected and tested

six samples. Two samples, one collected from the top layer of the mattresses

and the other from the concrete in the same area, gave positive responses for a

medium petroleum distillate. Other tests conducted by the State indicated that

the Ronsonol lighter fluid contained a light petroleum distillate and that the

flames from the burning mattresses would have reached a height of 23-31 feet,

a height consistent with expert testimony offered by the State to explain how the

fire could have spread from the first floor stairwell to the second floor of the

motel. The same expert opined that the motel fire originated in the mattresses,

                                        4
was set by human hands, and an ignitable liquid may have been used.3

       Appellant denied starting the fire and attempted to show that the fire

originated on the motel’s second floor or in the attic and that the medium

petroleum distillate found in the tested samples may have been insecticide

applied at the motel by a pest control company or charcoal lighter fluid used by

motel residents in their charcoal grills.

       Although appellant does not specifically challenge the sufficiency of the

evidence supporting her convictions, we conclude that, when viewed in the light

most favorable to the verdicts, the evidence presented at trial and summarized

above was sufficient to authorize a rational jury to find her guilty beyond a

reasonable doubt of the crimes for which she was convicted. Jackson v.

Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       2. Appellant contends her inability to hear and participate in several

bench conferences during jury selection violated her constitutional right to be



       3
         When asked about the defense theory that the fire originated in the motel attic, one
State expert testified that he considered this theory but eliminated it, noting that eyewitnesses
would have seen smoke coming out of the attic if the fire originated there. Instead, witnesses
described the fire as being in the back of the motel on the walkway or breeze way and
concentrated on the second floor or on top of the motel coming from the outside and going
in.

                                               5
present and to see and hear all proceedings during her trial. See Smith v. State,

298 Ga. 406, 409 (2) (782 SE2d 269) (2016). It is well-established that

proceedings involving the selection of a jury are considered “critical stage[s] at

which the defendant is entitled to be present,” Sammons v. State, 279 Ga. 386,

387 (612 SE2d 785) (2005), and that a defendant who is present in the

courtroom but who does not participate in a bench conference at which a juror

is discussed and dismissed is not “present” to the extent required under the

federal and state constitutions. See Tennessee v. Lane, 541 U.S. 509, 523 (124

SCt 1978, 158 LE2d 820) (2004) (“The Due Process Clause and the

Confrontation Clause of the Sixth Amendment … both guarantee to a criminal

defendant … the ‘right to be present at all stages of the trial where his absence

might frustrate the fairness of the proceedings.’”) (quoting Faretta v. California,

422 U.S. 806, 819, n. 15 (95 SCt 2525, 45 LE2d 562) (1975)); Zamora v. State,

291 Ga. 512, 518 (731 SE2d 658) (2012) (recognizing defendant’s right to be

present during bench conference where dismissal and removal of juror were

discussed). Compare Parks v. State, 275 Ga. 320 (565 SE2d 447) (2002)

(holding that defendant's right to be present does not extend to bench

conferences on “legal” and “scheduling” issues in which defense counsel

                                        6
participated and to which defendant could not have made a meaningful

contribution).

      This right belongs to the defendant, however, and “the defendant is free

to relinquish that right if he or she so chooses. ‘The right is waived if the

defendant personally waives it in court; if counsel waives it at the defendant's

express direction; if counsel waives it in open court while the defendant is

present; or if counsel waives it and the defendant subsequently acquiesces in the

waiver.’” Ward v. State, 288 Ga. 641, 646 (706 SE2d 430) (2011) (citation

omitted). See also Zamora, 291 Ga. at 518. Acquiescence may occur when

counsel makes no objection and a defendant remains silent after he or she is

made aware of the proceedings occurring in his or her absence. See Ward, 288

Ga. at 646 (“Acquiescence ‘means a tacit consent to acts or conditions, and

implies a knowledge of those things which are acquiesced in’”); Jackson v.

State, 278 Ga. 235, 237 (3) (599 SE2d 129) (2004) (concluding that defendants

acquiesced in proceedings occurring in their absence when counsel made no

objection and defendants remained silent after subject of in-chambers

proceeding was brought to their attention); Holsey v. State, 271 Ga. 856, 860-

861 (5) (524 SE2d 473) (1999) (defendant acquiesced in proceedings occurring

                                        7
during jury visit to crime scene in his absence when trial court raised in his

presence the issue of the jury’s questions during the site visit and the trial

court’s response and neither counsel nor defendant objected to the proceeding).

       We have no difficulty concluding in this case that appellant acquiesced in

her absence from the challenged bench conferences. Our review of the record

demonstrates these conferences occurred during jury selection, at a time when

the trial judge and counsel were discussing potential motions to strike venire

members following the general voir dire. While appellant clearly had the right

to be present for and to hear the matters discussed in the bench conferences,

appellant was in the courtroom when, at the conclusion of each bench

conference, the trial judge asked for motions to strike members of the panel that

had just been questioned, counsel stated their reasons for wanting to strike a

particular member for cause or their objection to opposing counsel’s motion to

strike, and the trial court announced its ruling. On each such occasion, no

objection was made by defense counsel to appellant’s absence, and appellant,

who was aware of the announced procedure for selecting a jury,4 witnessed the

       4
         Before jury selection began and while appellant was in the courtroom, the trial judge
instructed counsel that they would be allowed to ask general questions of each panel,
followed by specific questions of individual venire members. At the conclusion of all

                                              8
bench conferences, and heard the discussions concerning the challenged

members’ qualifications and the judge’s rulings, remained silent. Appellant’s

failure to voice any objection to her absence from the bench conferences, either

directly or through counsel, constituted acquiescence to her absence. See Smith,

298 Ga. at 409-410 (2) (concluding that defendant acquiesced in removal of

juror during his absence where he knew about the process by which jurors could

be removed and was present when juror’s removal was discussed, yet he raised

no objection); Heywood v. State, 292 Ga. 771, 774-775 (743 SE2d 12) (2013)

(holding that defendant acquiesced to counsel’s waiver of right to be present at

bench conference where trial judge advised everyone in courtroom, including

defendant, about the topic of the bench conference and defendant raised no

objection to his absence); Wilson v. State, 274 Ga. 637, 639 (3) (555 SE2d 725)

(2001) (holding that defendant acquiesced in in-chambers conference occurring

in his absence when trial court discussed the subject of the conference and its

ruling and neither defense counsel nor defendant raised an objection).


questioning, the court further explained, counsel would be allowed to make their motions to
strike. After defense counsel requested that venire members be seated in the jury box for
individual questioning, the judge announced, in appellant’s presence, that the procedure
would be amended to allow counsel to raise their motions to strike at the conclusion of
questioning of each panel.

                                            9
Accordingly, this enumeration is without merit.

      3. As part of its case in chief, the State called Dr. Najam, a forensic

chemist, to provide expert testimony pertaining to the fire’s ignition point and

the presence of an accelerant, otherwise known as an ignition source, on the

mattresses stored under the motel stairs. Because, as previously stated, testing

showed that Ronsonol brand lighter fluid contained a light petroleum distillate

and the samples taken from the mattresses and concrete in the rear stairwell of

the motel indicated the presence of a medium petroleum distillate, the prosecutor

asked Dr. Najam whether a light petroleum distillate under attack of fire could

change into a medium petroleum distillate. He responded that it was possible.

On-cross-examination, Dr. Najam admitted (1) that he found no match for

Ronsonol lighter fluid on the tested samples; (2) that many commercial

products, including cleaning fluids and pesticides, contain medium petroleum

distillates; and (3) that his written report did not contain any reference to his

opinion that the exposure of a light petroleum distillate to intense heat could

alter the chemical composition of the light petroleum distillate. He also clarified

that he was not rendering an opinion that Ronsonol lighter fluid was the ignition

source at the motel fire, only that it was a possible ignition source.

                                        10
      Appellant contends the trial court erred by allowing Dr. Najam to provide

his opinion regarding the change in composition of a light petroleum distillate

when exposed to sufficient heat because this aspect of his opinion was not

reduced to writing and made available to defense counsel at least ten days prior

to trial as required by OCGA § 17-16-4 (a) (4). The State asserts it did not

violate OCGA § 17-6-4 (a) (4)’s notice requirements because the question which

elicited the challenged opinion -- whether a light petroleum distillate under

attack of fire can transform into a medium petroleum distillate – was a

permissible hypothetical question. We find no reversible error.

      As an initial matter, we reject the State’s argument that it had no duty to

disclose the challenged portion of Dr. Najam’s expert opinion which the

prosecutor admitted she learned of before trial. OCGA § 17-16-4 (a) (4)

requires the prosecuting attorney, no later than 10 days prior to trial or as

otherwise ordered by the court, to disclose to the defense a written report or

summary of its expert’s findings and conclusions.5 Thus, although the State

      5
        OCGA § 17-16-4 (a) (4) provides, in pertinent part:
      The prosecuting attorney shall, no later than ten days prior to trial, or as
      otherwise ordered by the court, permit the defendant … to inspect and copy or
      photograph a report of any physical or mental examinations and of scientific
      tests or experiments, including a summary of the basis for the expert opinion

                                           11
may have been permitted to elicit Dr. Najam’s hypothetical opinion by asking

him to assume facts admitted into evidence at trial, see Peters v. State, 268 Ga.

414, 415 (1) (490 SE2d 94) (1997), it still was required under OCGA § 17-16-4

(a) (4) to provide timely notice of Dr. Najam’s opinion to defense counsel. See

Heywood, 292 Ga. at 777 (4) (b).

      Our inquiry does not end here, however, because the State’s failure to

comply with OCGA § 17-16-4 (a) (4) does not result in the automatic exclusion

of the testimony at issue.          The State would have been prohibited from

introducing such evidence only upon a showing of both prejudice to appellant

and bad faith by the State. See OCGA § 17-16-6;6 Thompson v. State, 295 Ga.


      rendered in the report, or copies thereof, if the state intends to introduce in
      evidence in its case-in-chief or in rebuttal the results of the physical or mental
      examination or scientific test or experiment. If the report is oral or partially
      oral, the prosecuting attorney shall reduce all relevant and material oral
      portions of such report to writing and shall serve opposing counsel with such
      portions no later than ten days prior to trial.
      6
          OCGA § 17-16-6 provides, in pertinent part:
             If at any time during the course of the proceedings it is brought
             to the attention of the court that the state has failed to comply
             with the requirements of this article, the court may order the
             state to permit the discovery or inspection, interview of the
             witness, grant a continuance, or, upon a showing of prejudice
             and bad faith, prohibit the state from introducing the evidence
             not disclosed or presenting the witness not disclosed, or may
             enter such other order as it deems just under the circumstances.

                                             12
96, 101 (757 SE2d 846) (2014); Tucker v. State, 222 Ga. App. 517, 518 (3) (474

SE2d 696) (1996). Pretermitting the question of whether the State acted in bad

faith, we conclude appellant has not met her burden of showing she was

sufficiently prejudiced by the State’s failure to provide timely notice. It is

undisputed that Dr. Najam was included on the State’s witness list and that his

written report, which included his opinion that the tested samples indicated the

presence of a medium petroleum distillate and that Ronsonol lighter fluid

contained a light petroleum distillate, were provided to defense counsel prior to

trial. Although Dr. Najam’s opinion pertaining to the State’s theory of the

transformation of a light petroleum distillate was not included in the State’s

disclosure, appellant, on motion for new trial, made no showing of what

additional evidence she would have presented or how the defense strategy would

have materially changed had she been given timely notice of this undisclosed

opinion, an opinion with which her own fire investigation expert, Phillip Friday,

essentially agreed.7 And Dr. Najam’s opinion merely indicated the possibility


       7
         Mr. Friday agreed at the motion for new trial hearing that chemicals can change
from “being in one group to another group” with a “catalyst” and explained that although he
possessed this knowledge prior to trial, he did not tell defense counsel and defense counsel
never asked whether such a transformation was possible.

                                            13
of such a transformation. Under these circumstances, the trial court did not

abuse its discretion by allowing Dr. Najam to testify regarding the changing

characteristics of a light petroleum distillate exposed to intense heat.8 See Leger

v. State, 291 Ga. 584, 587 (2) (a) (732 SE2d 53) (2012) (trial court did not abuse

its discretion by admitting DNA evidence not disclosed in compliance with the

requirements of OCGA § 17-16-4 (a) (4) where defendant failed to articulate

what prejudice he suffered that would have been cured by timely disclosure);

Guild v. State, 236 Ga App. 444, 446 (4) (512 SE2d 343 (1999) (defendant was

not prejudiced by State’s failure to provide timely notice of scientific report

showing seized contraband tested positive for cocaine and marijuana where

defendant was charged with possession of both substances, witness who

performed the test was included on State’s witness list, and record contained no

evidence that admission of report impaired defendant’s strategy).

       4. Nor did the trial court abuse its discretion by admitting a limited


       8
          In the absence of a showing of sufficient prejudice, we similarly find no reversible
error in the trial court’s decision to deny appellant’s request for a continuance. See Jones v.
State, 290 Ga. 576, 577-578 (2) (722 SE2d 853) (2012) (remedy fashioned by a trial court
to cure the State’s failure to comply with a statutory discovery requirement is reviewed on
appeal only for abuse of discretion); State v. Dickerson, 273 Ga. 408, 411-412 (2) (542 SE2d
487) (applying harmless error analysis to trial court’s denial of request for continuance based
on the State’s failure to disclose information in compliance with OCGA § 17-16-8 (a)).

                                              14
number of photographs depicting the location of the victims’ bodies at the crime

scene and post-autopsy photographs of the victims’ lungs. These photographs

were admissible because they were relevant and material to the State’s theory

that the victims died of smoke inhalation and their probative value was not

outweighed by their tendency to unduly prejudice the jury. See Zamora, 291

Ga. at 514 (holding that post-autopsy photographs were admissible because they

showed a material fact apparent only due to autopsy); Stokes v. State, 289 Ga.

702, 706 (4) (715 SE2d 81) (2011) (finding no abuse of discretion in trial

court’s decision to admit photographs of infant’s fatal injuries where

photographs served as part of the basis of medical expert’s opinion regarding the

mechanism of death). For the same reason, it was not error to admit in evidence

a 911 recording in which a victim stated he could not breathe and that the fire

was coming through the bathroom door. Evidence that the fire was coming

through the door, as opposed to the motel roof, was relevant to establish the

fire’s origination point and evidence that a victim was having difficulty

breathing, like the admitted post-autopsy photographs, was relevant to show the

cause of death.

      5. Appellant contends her convictions must be reversed because of the

                                       15
actions of one juror during jury deliberations. We disagree.

      The defense learned through its post-trial investigation that a juror, juror

Toale, lit a cigarette lighter during jury deliberations to show jurors that fire

travels upward. On motion for new trial, appellant asserted that Mr. Toale’s

demonstration constituted an experiment which improperly introduced to jurors

extrajudicial information, and she offered four juror affidavits in support of her

argument. See Turner v. Louisiana, 379 U. S. 466, 472-473 (85 SCt 546, 13

LE2d 424) (1965) (“In the constitutional sense, trial by jury in a criminal case

necessarily implies at the very least that the ‘evidence developed’ against a

defendant shall come from the witness stand in a public courtroom where there

is full judicial protection of the defendant's right of confrontation, of

cross-examination, and of counsel.”); Bobo v. State, 254 Ga. 146 (1) (327 SE2d

208) (1985) (finding defendant was prejudiced when two jurors communicated

to other jurors their personal observations from unsanctioned visits to the crime

scene). The trial court refused to consider the juror affidavits but allowed

appellant to place them into the record for purposes of appeal. Appellant

challenges both the trial court’s decision not to admit these affidavits and its

denial of her claim of improper experimentation.

                                       16
       Our analysis of this enumeration of error begins with the recognition that

appellant’s trial took place in 2009, a time at which the former Georgia

Evidence Code was still in effect.9 Under the law in effect at that time, as a

general rule, jurors were not allowed to impeach their own verdict, and for this

reason, judges could, in most circumstances, act within their discretion and

decline to consider juror affidavits offered for the purpose of impeaching a

verdict. See OCGA § 17-9-40 (“after [the jury's verdict] has been received,

recorded, and the jury dispersed, it may not be amended in matter of substance,

either by what the jurors say they intended to find or otherwise”); former OCGA

§ 17-9-41 (“The affidavits of jurors may be taken to sustain but not impeach

their verdict.”). See also Henley v. Smith, 285 Ga. 500, 503-504 (2) (678 SE2d

884) (2009) (trial court did not abuse its discretion by refusing to consider juror

affidavit in ruling on claim that verdict was based on evidence not presented at

trial); Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990) (trial court

did not abuse its discretion by refusing to consider juror affidavit where there

was no showing that the alleged racial bias of two jurors caused jurors to

       9
           Appellant’s reliance on OCGA § 24-6-606 (b), a provision in the new Evidence Code
effective January 1, 2013, which allows a juror to testify “whether extraneous prejudicial information
was improperly brought to the juror’s attention,” therefore, is misplaced.

                                                 17
convict). As originally stated in Williams v. State, 252 Ga. 7, 8 (1) (310 SE2d

528) (1984) (citation and punctuation omitted):

      [T]o allow a jury verdict to be upset solely because of such
      [extra-record] statements goes very far toward impugning the
      sanctity of jury deliberations, undermining the finality of jury
      verdicts, and subjecting jurors to post-trial harassment. Therefore,
      we will not allow a jury verdict to be upset solely because of such
      statements unless the statements are so prejudicial that the verdict
      must be deemed inherently lacking in due process.

      At the same time, the general rule prohibiting the use of juror affidavits

to impeach a verdict could not override a defendant’s right to a fair trial. See

Turpin v. Todd, 268 Ga. 820, 823 (1) (c) (493 SE2d 900) (1997) (“the general

rule against impeaching verdicts must succumb to the defendant's right to a fair

trial”). Juror affidavits, therefore, could be considered by a trial court to

impeach a verdict where it was alleged that “a juror communicate[d] sufficiently

prejudicial extra-judicial evidence to other jurors such that there is a reasonable

probability that the extra-judicial evidence contributed to the conviction.”

O’Donnell v. Smith, 294 Ga. 307, 310 (1) (751 SE2d 324) (2013). See Henley,

285 Ga. at 503.

      We find it unnecessary to decide here whether the trial court abused its

discretion by refusing to consider the proffered affidavits because our review of

                                        18
the affidavits and the record shows that Mr. Toale’s use of his lighter during

deliberations did not introduce prohibited extrajudicial information to the jury.

Mr. Toale stated in his affidavit that he had prior experience investigating fires

and that he lit his lighter in the jury room to illustrate that fire generally flows

upward, the same opinion offered by experts for both the State and defense at

trial.10 It is not error for jurors to bring their past experiences and learning into

deliberations to provide context and insight that allow the evidence and

arguments presented at trial to be thoroughly examined. See Martin v. State,

298 Ga. 259, 293 (16) (779 SE2d 342) (2015); Sears v. State, 270 Ga. 834, 840

(514 SE2d 426) (1999). Georgia courts, in this regard, have found appropriate

jurors’ statements during deliberations regarding a prior at-home experiment

pertaining to how the slide on a handgun works, see Watkins v. State, 285 Ga.

355, 356 (1) (676 SE2d 196) (2009), and jurors’ use of a cup and toy car during

deliberations to illustrate the circumstances of an automobile collision, see

Gentry v. State, 236 Ga. App. 820, 823 (3) (513 SE2d 528) (1999). As stated

in Martin, 298 Ga. at 293, “most jurors in most cases bring some previous

       10
          As explained in one juror affidavit, Mr. Toale’s demonstration, which occurred
during a discussion about where the fire started, appeared to be intended to illustrate for other
jurors that the fire could not have started in the attic.

                                               19
knowledge to jury deliberations that helps the other jurors understand and

evaluate the evidence and arguments presented by the parties at trial, and we

find this to be part of the very nature of the constitutionally mandated trial by

jury.” Mr. Toale’s actions, like the juror’s explanation in Watkins and the

juror’s use of props in Gentry, did not introduce prohibited extrajudicial

information into the deliberations. They, instead, exemplify the use of one

juror’s experience based knowledge to assist other jurors in their examination

of the evidence and their understanding of the theories offered by expert

witnesses at trial.

      (b) Appellant also challenges the verdicts based on the post-trial affidavit

of juror Burton, a juror who requested during deliberations to be excused from

service because her child was sick. Ms. Burton stated in her affidavit that she

changed her vote to guilty after the trial court denied her request to be removed

because she wanted to get home to her child. Appellant asserts the trial court’s

refusal to excuse Ms. Burton from service coerced her to change her vote from

not guilty, thus coercing the verdicts in this case.

      A trial judge is authorized by OCGA § 15-12-172 to replace a juror who

“dies, becomes ill, [or for some] other good cause shown to the court is found

                                        20
to be unable to perform his [or her] duty. . . .” A trial judge’s decision whether

to excuse a juror will not be reversed absent a showing of an abuse of discretion.

See Murray v. State, 276 Ga. 396, 398-399 (4) (578 SE2d 853) (2003) (“trial

court has discretion to replace a juror with an alternate at any time in the trial,

whether before or after submission to the jury”). The record in this case shows

that upon receiving a note from Ms. Burton indicating her desire to be removed

from the jury, she was questioned by the trial court. Her answers revealed that

her son had missed two therapy sessions due to her jury service, and he likely

would miss another session if deliberations continued. The State argued that

Ms. Burton should be released, and defense counsel, after initially stating that

she should not be removed, eventually agreed to “leave it with the Court.”

Based on its review of relevant law and Ms. Burton’s responses, the trial court

denied Ms. Burton’s request, stating:

      I don’t want you to think that either the Court or the parties in this
      case are unsympathetic to your current situation. . . . Rules of law
      govern how issues are to be addressed during the course of a trial,
      including during the jury deliberation process. After consulting
      with the parties and after my independent review of the law that’s
      applicable to these sorts of circumstances, I am unable to excuse
      you from the deliberation process at this time.

      On this record, we find no abuse of discretion in the trial court’s decision

                                        21
not to release Ms. Burton from jury service. Ms. Burton’s reason for wanting

to be removed and her answers to the trial court’s questions gave no indication

that her ability to perform her duties as a juror would be impaired if she was not

excused. See Smith v. State, 266 Ga. 827, 829 (2) (470 SE2d 674) (1996). She

did not claim that an emergency existed. Compare id. (finding no abuse of

discretion in trial court’s decision to release seated juror who informed court she

could not fulfill her duties as a juror because she had to undergo emergency

dental surgery) with Mason v. State, 244 Ga. App. 247, 249 (1) (535 SE2d 497)

(2000) (juror’s concern about “getting back to her business” was not evidence

that she could not perform her duties as a juror and did not amount to legal

cause for dismissal from jury service).

       Nor do we find any merit in the argument that the trial court’s decision not

to release Ms. Burton coerced the jury’s verdicts. Nothing in the trial court’s

statements denying Ms. Burton’s request intimated (1) that she should sacrifice

her honest beliefs for reasons other than those based on the trial or the

arguments of other jurors or (2) that a unanimous verdict was required.11

       11
          We note in this regard that the jury was polled after the verdict was announced, and
each juror, including Ms. Burton, confirmed that the announced verdict was their verdict and
that it had been rendered freely and voluntarily.

                                             22
Riggins v. State, 226 Ga. 381, 384-385 (174 SE2d 908) (1970), the case cited

by appellant in support of her claim that the verdicts were coerced, is, therefore,

factually distinguishable.12 And while Ms. Burton’s affidavit shows that her

verdicts may have been motivated, at least in part, by her desire to be home with

her child,13 verdicts may not be impeached merely by showing that not all of the

jurors reaching a unanimous verdict were motivated by exactly the same

considerations. See Aguilar v. State, 240 Ga. 830, 832-833 (1) (242 SE2d 620)

(1978) (upholding verdict despite affidavits of three jurors stating they agreed



       12
          Riggins involved a criminal jury trial in which the jury foreman informed the judge
during deliberations that the jury’s vote stood at 10-2 and had remained that way since the
previous day. The trial judge, in response, instructed jurors: "Well, I don't want anybody to
give up their honest convictions in this case, but it occurs [to me that] somebody is being a
little unreasonable, stubborn. I don't see how any jurors -- as intelligent as any jurors we
could get -- and it's a very expensive operation to hold these trials for a week at a time and
the jury ought to be able to reach a conclusion based on the evidence and by a preponderance
of the evidence.” We held that the court’s re-charge, which “intimated that one or more
members of the jury should surrender his or their conviction rather than cause a mistrial,” had
the effect of coercing the jury to reach a verdict, thus entitling the defendant to a new trial.
Riggins, 226 Ga. at 384-385.
       13
          Ms. Burton also stated in her affidavit that at one point in the deliberations, she and
another juror were the only ones voting not guilty, and as the jury continued its deliberations,
the other juror changed his vote. Mr. Toale explained in his affidavit that before the other
hold-out juror, the jury foreman, changed his vote, he (Toale) asked Ms. Burton if she would
change her vote to guilty if the foreman did. She replied that she would, and jurors
proceeded to spend half a day convincing the foreman of appellant’s guilt. Five minutes after
the foreman was finally convinced of appellant’s guilt, Toale stated, Ms. Burton changed her
vote.

                                               23
to verdict of guilty on the greater crime because one jury member stated that

conviction of the lesser crime would not give the defendant enough

punishment). “‘Nothing coming from a juror, either directly or indirectly, in the

way of a narrative with respect to the manner in which a verdict was arrived at,

will be heard to impeach the same.’” Bowman v. Bowman, 230 Ga. 395, 397

(197 SE2d 372) (1973) quoting Southern R. Co. v. Sommer, 112 Ga. 512 (37

SE 735) (1900). Accordingly, we find no merit in appellant’s claim that the

verdicts were coerced, and it follows, the trial court did not err by denying her

motion for new trial on this asserted ground.

      Judgment affirmed. All the Justices concur.




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