                            THIRD DIVISION
                             MILLER, P. J.,
                       MCFADDEN and MCMILLIAN, 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 18, 2016




In the Court of Appeals of Georgia
 A16A0727. LLOYD v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Marcus Lloyd was convicted of aggravated assault and

possession of a firearm during the commission of a felony. Just after he was

sentenced, Lloyd learned that a juror had engaged in misconduct during jury

deliberations. That juror had researched certain legal definitions on the Internet and,

while out on a lunch break, had asked a police officer to explain the law of “stand

your ground.” Lloyd filed an emergency motion for new trial, and once the trial court

denied it, he filed this appeal. We conclude that the state has failed to overcome

beyond a reasonable doubt the presumption of prejudice that arises from such juror

misconduct in criminal cases. We therefore reverse Lloyd’s convictions.

      1. Facts.
      Lloyd was charged with malice murder, two counts of felony murder, two

counts of aggravated assault, and five counts of possession of a firearm during the

commission of a felony. Voir dire began on a Monday morning and continued after

a lunch break. Before breaking for lunch, the trial court instructed the prospective

jurors to refrain from independent research:

      While you’re at lunch, please do not look up anything about this case or
      do any research. . . . Please do not look up anything about the case on
      the Internet or through the cell phones or anything like that because that
      would be improper. What you learn about this case you should learn
      here in this courtroom and nowhere else because the laws are designed
      to protect the accused, and only admissible evidence is allowed to be
      presented to jurors during the trial, and we try to preserve that. So please
      do not anytime during the trial look up anything about the case or any
      law. I’ll tell you the law, the lawyers will present the facts, and you put
      the two together to try to try the case, to decide the case that’s given to
      you. So please observe that.


Before recessing that Monday afternoon, the court again instructed the prospective

jurors not to research the law or any other matters concerning the case.

      By 10:00 on Tuesday morning, the jury had been selected and seated. The court

gave the jury preliminary instructions, including that they should not discuss the case




                                           2
with anyone, conduct any independent research about the case, search the Internet to

help them decide the case, or conduct any sort of online legal research.

      The state began presenting its case shortly before 10:30 that morning. The

evidence showed that an officer who was driving by saw the victim on the ground,

Lloyd running toward the victim, and then Lloyd yanking shoes off the victim’s feet.

He thought it looked suspicious so he stopped his car and got out. After calling an

ambulance for the victim, the officer spoke with Lloyd, who said that he had placed

an ad on Craigslist to sell some sneakers and had agreed to meet the victim at a gas

station to make the sale. Lloyd told the officer that he had allowed the victim to try

on the shoes and that once the victim had both shoes on, the victim pulled out what

Lloyd believed to be a knife, tried to cut Lloyd across his stomach, and took off

running. Lloyd told the officer that when the victim swiped at him, he was afraid. He

shot at the victim once in the parking lot, chased him, and caught him. The victim

swiped at Lloyd again and began running away, when Lloyd shot at him again, trying

to get him to stop. The entire incident lasted six to eight seconds. No knife was found.

A medical examiner with the Georgia Bureau of Investigation testified that the victim

died from two gunshot wounds, one in the back and one in the buttock. The state

concluded its case the next day, Wednesday.

                                           3
      Lloyd testified in his own defense. He testified that he shot the first time in fear

and the subsequent times, as the victim was fleeing, to scare the victim into stopping.

But Lloyd also testified that he was still in fear while the victim was fleeing because

he did not “know who he’s with and what he’s about to do nor his intent at that

point.” The defense rested on Wednesday and the court charged the jury. The court

included the following charge on self-defense:

      In applying the law of self-defense, a defendant is justified to use force
      against another person in defense of self or others and the standard is
      whether circumstances were such that they would excite not merely the
      fears of the defendant, but the fears of a reasonable person.


      For the use of force to be justified under the law, the accused must truly
      have acted under the influence of these fears and not in a spirit of
      revenge.


      What the facts are in this case is a matter solely for you, the jury, to
      determine given all the circumstances involved in this case.


      One who is not the aggressor is not required to retreat before being
      justified in using such force as is necessary for personal defense or in
      using force that’s likely to cause death or great bodily harm if one
      reasonably believes that such force is necessary to prevent death or great
      bodily injury to himself or to prevent the commission of a forcible
      felony.

                                           4
      The use of excessive or unlawful force while acting in self-defense is
      not justifiable and the defendant’s conduct in this case would not be
      justified if you find that the force used exceeded that which the
      defendant reasonably believed was necessary to defend against the
      victim’s use unlawful force, if any.


Less than ten minutes after beginning deliberations late in the day, the jury returned

to the courtroom to ask the court for written “definitions of the law.” The court

instructed the jurors that he did not have the charges in written form that he could

give to them. The jury decided to recess for the day.

      That evening, a juror whose initials are R. R. researched the definitions of

malice murder and felony murder on the Internet. At the hearing on Lloyd’s

emergency motion for new trial, Juror R. R. testified that the definitions he found

were the same as the definitions the state had shown on a projection screen during

closing argument.

      When the jury reconvened Thursday morning, Juror R. R. attempted to speak

with the other jurors about his research, but none of the other jurors wanted to discuss

malice murder or felony murder because only one juror, Juror R. R. himself, voted to

convict on those charges. Within the first two hours of reconvening, the jury sent out

a note asking the following questions of the court:

                                           5
      Please provide definition of “stand your ground”.


      When is it not allowed


      What is not considered “stand your ground”?


      Is pursuit included?


      In response, the trial court brought the jury into the courtroom, where he

instructed the jury that Georgia does not have the legal concept “stand your ground.”

The court explained:

      Mr. Foreman, I have your note. Thank you. We’ll be glad to go over that
      with you. Your first question, and I’ll read it and then I’ll try to answer
      it is: Please provide the definition of “stand your ground”.


      Well, “stand your ground” is a synonym not used under Georgia law.
      It has, you know, it’s justification, defense of justification, is the way it’s
      referred to which is just another way of saying the same things. And I
      have, I’ll go over that again with you. When it’s not allowed that will be
      given to you, too. And what is not considered “stand your ground”.


      I think I’ll just re-charge you in that whole theory, and that will give you
      a better understanding, and then you have to make the decision. So you
      understand that?



                                            6
THE FOREPERSON: Yes, sir.


THE COURT: Now I’ll give you that charge. When I finish, see if that
answers your questions, okay?


THE FOREPERSON: Thank you, sir.


THE COURT: And your last question: Is pursuit included. That will be
for you, you know, that will be explained in the charge, too, I think. It’s
quite common for this to have to happen, so please just bear with us.
Here’s the charge:


An affirmative defense is a defense that admits doing the act charged,
but it seeks to justify, excuse, or mitigate it. Once an affirmative defense
is raised, the burden is upon the state to prove -- disprove it beyond a
reasonable doubt. The fact that a person’s conduct is justified is a
defense to prosecution for any crime based on that conduct.


A defense of justification can be claimed when a person’s conduct is
justified as follows: A person is justified in threatening or using force
against another person when and to the extent that he reasonably
believes that such threat of force is necessary to defend himself against
the other’s imminent use of unlawful force.


A person is justified in using force that is intended or likely to cause
death or great bodily harm only if that person reasonably believes that
such force is necessary to prevent death or great bodily injury to himself

                                     7
or to prevent the commission of a forceful felony upon him and the state
has the burden of proof beyond a reasonable doubt that the defendant
was not justified.


A forcible felony, as I mentioned, is a felony that involves the use of or
threat of physical force or violence against any person. In applying the
law of self-defense, a defendant is justified in using force against
another person and the standard is whether the circumstances were such
that they would excite not merely the fears of the defendant but the fears
of a reasonable person. For the use of force to be justified under the law,
the accused must truly have acted under the influence of these fears and
not in a spirit of revenge. What are the facts in this case is a matter
solely for you, the jury, to determine given all the circumstances of the
case.


One who is not the aggressor is not required to retreat but before being
justified and using such force as is necessary for personal defense or
using force that is likely to cause death or great bodily harm if one
reasonably believes that such force is necessary to prevent death or great
bodily harm to oneself or to prevent the commission of a forcible felony.


The use of excessive force or unlawful force while acting in self-defense
is not justifiable, and the defendant’s conduct in this case would not be
justified if you find that the force used exceeded that which the
defendant reasonably believed was necessary to defend against the
alleged victim’s use of unlawful force, if any.



                                    8
      And I think that covers the entire section. Let me see -- yeah, the covers
      the entire law as it applies in Georgia. Does that kind of answer your
      question?


      THE FOREPERSON: Yes, sir.


      THE COURT: If you have any, need it gone over again, just let me
      know. I don’t mind going over it any time.


      THE FOREPERSON: That answers our question. . . . (Emphasis
      supplied).


      While the jury was on its lunch break, Juror R. R. went to a grocery store. He

testified that he saw a police officer in the store, approached the officer, and asked

him to explain the law of “stand your ground.” He said that he saw it as an

opportunity to have the concept explained in laymen’s terms because the trial court’s

response to the jury’s question did not explain it. Juror R. R. did not remember

exactly what the police officer told him, but, according to Juror R. R., it was

something like:

      You can only go to a certain limit. You have to have fear. . . . [Y]ou
      cannot be angry and recover things. You have to feel threatened. . . .
      [T]here’s a point where your life is threatened and you can “stand your
      ground”. But then once that element of fear goes away, . . . you cannot


                                          9
      go beyond that point and [] shoot somebody. . . or use any deadly force.
      . . [b]ecause you’re not scared.


The officer also told Juror R. R. that “you cannot pursue anyone.” When Juror R. R.

returned from lunch, he related to some of the other jurors that he had spoken with

a police officer about “stand your ground” and asked if they could discuss the issue.

According to Juror R. R., the jury “never really got into that either [because

e]veryone’s minds were pretty much made up.”

      That afternoon, the jury informed the court that it was unable to come to a

unanimous verdict on any count. The court instructed the jury to continue

deliberating. About two hours later, the court recessed for the day.

      Juror R. R. decided that he would create a presentation to illustrate his position

to the other jurors. A flight instructor, he wanted to create a diagram that would show

the relevant factors in Lloyd’s case in the same manner that he would use a diagram

to show the relevant factors in an airplane crash. He wanted to include “stand your

ground” in his diagram, and he had spoken with the officer at the grocery store so that

he could complete the diagram. According to Juror R. R., the officer’s explanation of

“stand your ground” gave Juror R. R. “a good idea of what it was to illustrate that

point.”

                                          10
      At home that Thursday night, Juror R. R. used the officer’s information about

“stand your ground” to create a draft of his diagram. Juror R. R. wanted to correlate

the point of impact in a plane crash with the point at which Lloyd shot the victim. He

testified that “that’s where [he] used the ‘stand your ground.’ That’s why [he] wanted

to ask a question about that, to make sure [he] had that right.”

      When the jury reconvened on Friday, Juror R. R. drew his diagram in the jury

room. That diagram was admitted at the hearing on the motion for new trial. On it,

Juror R. R. had written:

      From this point when [the victim] flees threat element gone so no self-
      defense as stand your ground states. All that is left is preserving
      personal property you cannot use deadly force to protect that. Fact is
      Lloyd pursued to recover personal property used deadly force to cause
      death & taking shoes off. For whatever reason, subject flees, no threat
      – that defense doesn’t fly.


He testified that he had “done some research on it, so that’s what [he] did, and that’s

how [they] ultimately got [their] decision.” Just after Juror R. R. made his

presentation, he heard a juror say, “Oh. I see it now,” and the jury reached a verdict.

      Until that point, the vote had been eleven to one for acquittal; Juror R. R. was

the only juror voting all along for conviction. In fact, that morning, the prosecutor had


                                           11
told the court that he and defense counsel were in agreement that it was appropriate

to declare a mistrial. Accordingly, within 40 minutes of the jury resuming

deliberations Friday morning, the court called in the jurors to determine whether they

had made any progress. The foreman informed the court that the jury was very close

to reaching a verdict, so the court allowed them to continue deliberations. Forty

minutes later, the jury returned the verdict, finding Lloyd guilty of one count of

aggravated assault and one firearms offense and not guilty of the other charges.

       Some of the jurors remained in the courtroom during sentencing, where the

court sentenced Lloyd to 25 years. Some jurors were upset with the sentence,

approached defense counsel, and told him about Juror R. R.’s misconduct. As a result,

Lloyd filed the instant emergency motion for new trial.

       During the hearing on the motion, the trial court heard testimony from five

jurors: the state called two jurors as witnesses, including Juror R. R., and Lloyd called

three jurors as witnesses. The remaining seven jurors did not testify. (Lloyd presented

affidavit testimony of two additional jurors, but the trial court ruled that the affidavits

were largely inadmissible and did not refer to them in his order.)

       2. Presumption of harm.



                                            12
       The state concedes that Juror R. R. engaged in misconduct, but it argues that

the misconduct was harmless. We disagree.

       In regard to improper juror communications in criminal cases, our Supreme

Court has held, in a long line of authority, that “[t]he rule in this [s]tate is that where

such an improper communication occurs, there is a presumption of harm and the

burden is on the [s]tate to show the lack thereof.” Jones v. State, 258 Ga. 96, 96-97

(366 SE2d 144) (1988), citing Whitlock v. State, 230 Ga. 700, 700-702 (1) (198 SE2d

865) (1973) and Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888) (1986);

accord. Simmons v. State, 291 Ga. 705, 707 (4) (733 SE2d 280) (2012); Greer v.

Thompson, 281 Ga. 419, 421 (637 SE2d 698) (2006). The state must overcome this

presumption beyond a reasonable doubt, and we must determine whether the juror

misconduct “is so inherently prejudicial as to require a new trial, or whether it is an

immaterial irregularity without opportunity for injustice.” Simmons, 291 Ga. at 707

(4) (citation omitted).

       Both parties incorrectly take the position that this presumption no longer

obtains in light of our decision in Armstrong v. Gynecology & Obstetrics of DeKalb,

P.C., 327 Ga. App. 737, 738-741 (1) (761 SE2d 133) (2014). Because this is a

criminal case, Armstrong is not controlling. In Armstrong, we reasoned that, under

                                            13
the new Evidence Code, it was appropriate to look to federal cases on the issue of

juror misconduct, because new OCGA § 24-6-606 (b) is comparable to Fed. R. of

Evid. 606 (b) and both statutes concern juror testimony about verdicts. Id. at 738 (1).

(The text of these statutes is reproduced in full in the margin.1) But Armstrong’s

      1
          OCGA § 24-6-606 (b) provides:

      Upon an inquiry into the validity of a verdict or indictment, a juror shall
      not testify by affidavit or otherwise nor shall a juror’s statements be
      received in evidence as to any matter or statement occurring during the
      course of the jury’s deliberations or to the effect of anything upon the
      jury deliberations or any other juror’s mind or emotions as influencing
      the juror to assent to or dissent from the verdict or indictment or
      concerning the juror’s mental processes in connection therewith;
      provided, however, that a juror may testify on the question of whether
      extraneous prejudicial information was improperly brought to the juror’s
      attention, whether any outside influence was improperly brought to bear
      upon any juror, or whether there was a mistake in entering the verdict
      onto the verdict form.



      Fed. R. of Evid. 606 (b) provides:

      During an Inquiry into the Validity of a Verdict or Indictment.


      (1) Prohibited Testimony or Other Evidence. During an inquiry into the
      validity of a verdict or indictment, a juror may not testify about any

                                           14
holding that in civil cases there is no presumption of prejudice arising from juror

misconduct merely reaffirms prior authority. See, e.g., Wood v. Food Giant, 183 Ga.

App. 604, 605 (3) (359 SE2d 410) (1987); Smith v. Blackshear, 127 Ga. App. 610,

611 (194 SE2d 519) (1972); Bi-Lo v. Stanciel, 148 Ga. App. 614, 616 (4) (251 SE2d

834) (1979). Armstrong cannot be read to undermine the long line of Supreme Court

authority holding that such a presumption does obtain in criminal cases — especially

since the analyses in that line of authority do not cite the Evidence Code. See Jones,




      statement made or incident that occurred during the jury’s deliberations;
      the effect of anything on that juror’s or another juror’s vote; or any
      juror’s mental processes concerning the verdict or indictment. The court
      may not receive a juror’s affidavit or evidence of a juror’s statement on
      these matters.


      (2) Exceptions. A juror may testify about whether:


      (A) extraneous prejudicial information was improperly brought to the
      jury’s attention;


      (B) an outside influence was improperly brought to bear on any juror;
      or


      (C) a mistake was made in entering the verdict on the verdict form.

                                         15
supra, Whitlock, supra, Dudley, supra, Simmons, supra, Greer, supra. So the trial court

properly presumed harm, given the undisputed juror misconduct on a central issue in

the case.

      3. Communication with police officer.

      We review the trial court’s conclusion that Juror R. R.’s communication with

a police officer was harmless in light of that presumption. The trial court so

concluded on the basis that the conversation involved a legal concept, not the facts

of the case nor the officer’s opinion about a particular hypothetical fact scenario and

that the officer’s explanation was consistent with the court’s jury instructions and

Georgia law. The court resolved a troubling conflict in the jurors’ testimony in favor

of the state: Although two of the jurors called by Lloyd testified that Juror R. R. told

them that the police officer said it was never permissible to shoot someone in the

back, Juror R. R. testified that he did not ask the officer about shooting someone in

the back. The trial court found the state’s witnesses to be more credible. The court

concluded that since Juror R. R. did not communicate to his fellow jurors that the

police officer said it is never permissible to shoot a victim in the back, the state

overcame the presumption of harm from Juror R. R.’s misconduct.



                                          16
      We must defer to the trial court’s findings of fact, but we disagree with his

conclusion of law. Aside from the shot-in-the-back issue, the jury had specifically

asked the court whether pursuit was included in “stand your ground.” The court told

the jury that “stand your ground” is not a specific concept in Georgia, but he did not

answer the jury’s question directly. Instead, the court properly instructed the jury that

an accused is justified in using force when he reasonably believes that force is

necessary to prevent death or great bodily harm and when the circumstances would

excite the fears of a reasonable person, and that the accused must truly have acted

under the influence of these fears and not in a spirit of revenge. At the motion for new

trial hearing, Juror R. R. himself testified that, “I asked a question in here, sent a

message out on this very point and it didn’t really get explained or anything,” so he

decided to ask the officer, who told him that it is not permissible to pursue someone

in a stand-your-ground situation. This testimony was confirmed by one of the jurors

called by Lloyd, who testified that from the way Juror R. R. explained it, she

concluded that the officer had told Juror R. R. that it was unjustifiable to shoot the

victim when he turned around and ran. And Juror R. R.’s diagram – which he

presented just before the jury reached its verdict – included language about pursuit

and “stand your ground.” The testimony of the jurors indicates that Juror R. R.’s

                                           17
presentation to the jury of the information from the police officer via the diagram

convinced them that they could not consider the issue of whether Lloyd’s fear of harm

was reasonable when Lloyd shot the victim as the victim was running. We also

observe that the trial court never heard from seven of the jurors, so it would be pure

speculation to say that they were not affected by Juror R. R.’s misconduct. See

Chambers v. State, 321 Ga. App. 512, 519-520 (1) (739 SE2d 513) (2013) (physical

precedent only).

      “[B]ecause the juror’s misconduct in the present case affected the key issue of

self-defense and the verdict became unanimous only after the introduction of the

improper [communication], we conclude that there is a reasonable possibility that the

juror’s misconduct contributed to [Lloyd’s] conviction.” Hammock v. State, 277 Ga.

612, 614 (2) (592 SE2d 415) (2004). The state did not overcome the presumption of

prejudice beyond a reasonable doubt.

      4. Internet research.

      Given our holding in division 3, we do not reach Lloyd’s argument that the trial

court erred in finding that Juror R. R.’s researching the definitions of malice murder

and felony murder was harmless.



                                         18
      Judgment reversed. Miller, P. J., concurs; McMillian, J., concurs fully in

divisions 1, 2 and 4, and in the judgment only in division 3.




                                         19
