                                 THIRD DIVISION
                                ELLINGTON, P. J.,
                             BETHEL and GOBEIL, 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


                                                                      October 1, 2018




In the Court of Appeals of Georgia
 A18A0960. COFFEE v. THE STATE.

      BETHEL, Judge.

      This case turns on a fundamental principle essential to ensuring fair jury trials

in Georgia. Our general rule is that a criminal defendant is entitled to a full panel of

qualified jurors to which to direct his peremptory strikes. Because this case involves

allegations of theft from Walmart1 and the trial court declined to excuse for cause one

of Walmart’s shareholders, we reverse.

      “On appeal from a criminal conviction, the evidence is viewed in the light most

favorable to the verdict, and the defendant no longer enjoys the presumption of

innocence.” State v. Robinson, 275 Ga. App. 117, 117 (619 SE2d 806) (2005)

(citation omitted). So viewed, the record shows that over the course of several days

in October 2015, Coffee, dressed in a hat and sunglasses, entered three different

      1
          Lindsey Bernard Coffee was convicted of four counts of theft by shoplifting.
Walmart stores. In each of these stores, surveillance footage showed Coffee moving

electronic items to other areas of the store before leaving. The footage also shows

Coffee later returning to the store to collect the “staged” items and leaving with the

items through the garden center.

      Coffee was later arrested at a fourth Walmart after an officer observed him

attempting to exit the store with items in his shopping cart. Coffee was indicted on

four counts of theft by shoplifting.

          During voir dire2 and prior to trial, Coffee challenged the qualifications of

juror #39 based on the juror’s ownership of stock in Walmart and her professed

“strong feelings” against shoplifters. In response to the challenge, the trial court

conducted an unrecorded bench conference. Thereafter, Coffee contends, and the

State does not dispute,3 that the trial court proceeded with voir dire and jury selection

with the challenged juror in the venire. After the jury had been impaneled and

removed from the courtroom, the remaining panelists were released. The trial court

heard argument from the parties on the record regarding the challenge to juror #39.



      2
          Voir dire was not transcribed.
      3
       See Court of Appeals Rule 25 (b) (1) (appellee “shall point out any material
inaccuracy or incompleteness of appellant’s statement of facts”).

                                            2
Coffee then expended one of his peremptory strikes to remove juror #39 from the

array after the trial court declined to remove her for cause.

      Following trial, Coffee was convicted on all four counts of theft by shoplifting.

Coffee filed a motion for a new trial, which the trial court denied following a hearing.

This appeal ensued.

      1. Coffee argues that the trial court erred in denying his request to remove juror

#39 for cause because he was entitled to a full panel of qualified jurors against which

he could use his peremptory strikes. We agree.

      “The decision to strike a juror for cause lies within the sound discretion of the

trial court.” Berry v. State, 302 Ga. App. 31, 32 (1) (690 SE2d 428) (2010) (citation

and punctuation omitted). In general, a defendant is entitled to a panel of 30 qualified

jurors (that is, jurors not subject to being excused for cause) to which to direct his

peremptory strikes. See OCGA § 15-12-160.1; Kirkland v. State, 274 Ga. 778, 779-

780 (2) (560 SE2d 6) (2002). “Where a corporation is the person injured, it occupies

the position of a party at interest, and its stockholders are not competent to serve as

jurors in a trial against the alleged wrongdoer” due to their relationship to the

“person” having an interest in the case. Kirkland, 274 Ga. at 779 (1) (citations and

punctuation omitted); see also Lowman v. State, 197 Ga. App. 556, 557 (2) (398

                                           3
SE2d 832) (1990) (members of electric membership corporations are disqualified

from serving as jurors in criminal trials in which the corporation is the victim of the

crime charged). Thus, members of the venire who have stock ownership in a victim

company are disqualified to serve as a matter of law and are subject to challenge for

cause. See Kirkland, 274 Ga. 779 (1). Further, “[t]he defendant’s failure to exhaust

his peremptory strikes before the twelfth juror was impaneled does not render the

error harmless.” Harris v. State, 255 Ga. 464, 465 (2) (339 SE2d 712) (1986) (noting

that “a true determination of the harm caused by a trial court’s refusal to strike an

unqualified juror would require omniscience”); see also Bass v. State, 183 Ga. App.

349, 352 (358 SE2d 837) (1987).4 It is well established in Georgia that “the selection

of an impartial jury is the cornerstone of the fairness of trial by jury, and in this

process, peremptory strikes are invaluable.” DeSantos v. State, 345 Ga. App. 545, 549

(1) (813 SE2d 782) (2018) (citation and punctuation omitted); see also Kirkland, 274

Ga. 779 (1).

      Here, the trial court declined to disqualify juror #39 for cause because it was

uncertain how much Walmart stock she owned in the “multi-billion” dollar company

      4
         Compare Nwakanma v. State, 296 Ga. 493, 500 (5) (768 SE2d 503) (2015)
(trial court’s refusal to strike juror for cause harmless where defendant could not
show that removal of the juror cost him one of his peremptory strikes).

                                          4
and the trial court did not believe that her stock ownership in the victim company

evidenced any bias.5 Coffee then had to expend one of his peremptory strikes to

remove the juror from the array, though the trial court later noted in its order denying

Coffee’s motion for a new trial that he did not use all of his strikes. This was the

incorrect application of the law.

      In light of this error, the trial court erred in denying Coffee’s motion for a new

trial. See Lowman, 197 Ga. App. at 557 (2). Juror #39 was disqualified to serve as a

matter of law and should have been excused for cause due to her ownership in the

victim company, Walmart. See Kirkland, 274 Ga. at 779 (1). Requiring Coffee to use

a peremptory strike to remove juror #39 means that Coffee was denied a full panel of

qualified jurors, and as a result, his conviction must be reversed and his case

remanded for a new trial. See DeSantos, 345 Ga. App. at 549 (1).

      2. Because of our decision in Division 1, we need not address Coffee’s other

enumerations of error.

      Judgment reversed. Ellington, P. J., concurs. Gobeil, J., concurs fully and

specially.


      5
        The trial court also declined to disqualify juror #39 for cause based on her
“strong feelings” about shoplifiting.

                                           5
 A18A0960. COFFEE v. THE STATE.



      GOBEIL, Judge, concurring fully and specially.

      I concur fully in the majority opinion because the result is dictated by the

application of binding precedent to the facts at hand. I write separately, however, to

highlight the fact that more recent precedent from the Supreme Court of Georgia

suggests that the law on which the majority opinion relies may not be as broad and

unqualified as it appears.

      As the majority opinion demonstrates, this case, in which a local retail outlet

of a large, publicly-traded corporation was the victim of the alleged crime, bears a



                                          1
striking resemblance to Kirkland v. State, 274 Ga. 778 (560 SE2d 6) (2002). Like

Kirkland, the current case presents the question of whether a prospective juror who

owns stock in the corporate victim should be struck for cause. The Kirkland Court

held that any member of the venire who owned stock in the corporation at issue was

“disqualified to serve as a matter of law and [was] subject to challenge for cause.”

274 Ga. at 779 (1). In explaining this result, our Supreme Court stated that “[b]ias is

conclusively presumed or inferred as a matter of law regardless of actual partiality,

where a juror is related to a party. In that circumstance, disqualification on the basis

of implied bias is mandatory.” Id. at 780 (2) (citation omitted). The Court then

concluded that “[w]here a corporation is the person injured, it occupies the position

of a party in interest, and its stockholders are not competent to serve as jurors in a

trial against the alleged wrongdoer.” Id. at 779 (1) (citation omitted).

      Given the broad and unqualified holding in Kirkland, and given its factual

parallels with this case, I agree with the majority’s conclusion that the trial court

erred in denying Coffee’s request to strike juror number 39 for cause. I note,

however, that in Veal v. State, 301 Ga. 161 (800 SE2d 325) (2017), the Georgia

Supreme Court expressed disfavor with per se rules for juror disqualification, such

as the one set forth in Kirkland. Veal involved a murder committed during the armed

                                           2
robbery of a bank. Relying on Kirkland, the defendant contended on appeal that trial

counsel was ineffective for failing to strike for cause members of the venire who

were customers of the bank, who banked at the branch where the robbery occurred,

and/or who had worked or interacted with the murder victim or his daughter at the

bank. 301 Ga. at 163-164 (2) (a). The Supreme Court rejected this argument, finding

that Kirkland was “inapposite” as there was “no evidence” that the jurors who were

also customers of the bank had any ownership interest in that corporate entity. Id. at

164 (2) (a). The Court further found that jurors could not be disqualified simply

because they had a long-standing customer relationship with the bank, stating “we

have long ruled that a juror’s knowledge of, or non-familial relationship with, a party

is not a per se disqualification.” Id. Instead, such knowledge or relationship supports

disqualification as a matter of law only if it results in the juror’s “having a fixed

opinion of the accused’s guilt or innocence or a bias for or against the accused.” Id.

Finding that the contested jurors swore under oath they would be fair and impartial,

that none of them expressed a bias or a fixed opinion regarding the defendant’s guilt

or innocence, and that no other evidence was introduced to cast doubt on their fitness

to serve, the Veal court concluded that any challenge for cause would have lacked

merit. Id. at 166 (2) (b). Compare Kirkland, 274 Ga. at 779 (1) (“[a]s applied to

                                          3
[defendant’s] case, members of the venire who responded affirmatively to the court’s

inquiry concerning a business relationship to the [corporate victim] were disqualified

to serve as a matter of law and were subject to challenge for cause”).

      The holding in Veal is premised on the long-standing rule that, in general,

“[t]he law presumes that jurors are impartial, and the complaining party has a burden

to overcome that presumption.” Veal, 301 Ga. at 165 (2) (b). Whether a party has met

that burden, and therefore “the decision to strike juror for cause[,] lies within the

sound discretion of the trial court.” Berry v. State, 302 Ga. App. 31, 32 (690 SE2d

428) (2010) (citation and punctuation omitted). Thus, although the Veal court

distinguished Kirkland, the law and the reasoning set forth therein suggest that

individual circumstances should be considered in assessing whether a prospective

juror should be disqualified based upon his or her non-familial relationship with a

party, even where that relationship is financial in nature.

      In the case before us, it appears no inquiry was made regarding the amount of

stock owned by the juror or its value. Nor was the juror questioned regarding any

potential impact his stock interest might have on his ability to be impartial. In light

of Veal, however, it seems that such information would be relevant to the issue of

whether the juror was disqualified. For example, a situation where a juror owns one

                                          4
share in a large, publicly-traded company is very different from one where the juror

owns 25% of a company. Information concerning the juror’s knowledge of the case

and his or her expressed ability to be fair and impartial would also be relevant. In

short, to exclude jurors as a matter of law simply because they own some amount of

stock in a large, publicly-traded corporation, regardless of the amount of their

interest or their knowledge of the case, and without any inquiry into their ability to

be impartial, seems inconsistent with Veal’s balancing approach.6

      In closing, I recognize that the right to an impartial jury plays a critical role in

our judicial system, as do the legal rules formulated to protect that right. I further

recognize that the breadth of the bright line rule articulated in Kirkland serves to

protect that right. Nevertheless, the more balanced approach articulated in Veal would




      6
        It appears that the per se rule adopted by Kirkland has its genesis in the civil
context – i.e., in the context of a corporate entity who, rather than being the victim of
a crime, is seeking or defending against a significant money judgment. See, e. g.,
Georgia R. R. v. Cole, 73 Ga. 713, 715 (1885). In that circumstance, a stockholder
would have a definitive financial stake in the verdict and “disqualification on the
basis of implied bias [would be] mandatory.” Kirkland, 274 Ga. at 779 (2) (citation
and punctuation omitted).

                                           5
seem to protect the interests of the judicial system without sacrificing the legal

protections necessary to ensure parties a fair trial.7




      7
        Significantly, the bright-line rule articulated in Kirkland is becoming more
complicated to apply in light of the millions of Americans who have some sort of
retirement account or other financial plan that involves stock ownership. According
to the Pension Rights Center, and based upon the Bureau of Labor Statistics’
National Compensation Survey for 2017, 54% of all American workers (full and part-
time) participate in a such a retirement plan through their workplace.

                                           6
