                               FIRST DIVISION
                                DOYLE, C. J.,
                           ANDREWS, P. J., and RAY, J.

                     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


                                                                        May 26, 2016




In the Court of Appeals of Georgia
 A16A0377. BETHEA v. THE STATE.                                                DO-013 C

      DOYLE, Chief Judge.

      Following a jury trial, Anthony Bethea was convicted of voluntary

manslaughter1 and concealing the death of another.2 He appeals from the denial of his

motion for new trial, contending that the trial court erred by excusing a juror for cause

after deliberations began. For the reasons that follow, we affirm.

      Construed in favor of the verdict,3 the record shows that Bethea got into a

drunken altercation with his roommate, Darrell Bailey, after a night out. The

altercation ended when Bethea grabbed Bailey in a choke hold that caused Bailey to


      1
          OCGA § 16-5-2 (a).
      2
          OCGA § 16-10-31.
      3
          See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
die. When Bailey did not revive from the choke hold, Bethea dragged his body to the

woods, where it was discovered a few weeks later due to the strong odor of

decomposition.

      Bethea was charged with murder, felony murder, aggravated assault, and

concealing the death of another. He testified at trial, making a self-defense argument.

After the close of the evidence and the trial court’s instructions, the jury retreated to

the jury room to deliberate at 4:17 p.m. The jury later asked the court a question,

seeking clarification as to the use of hands as deadly weapons, which the trial court

answered in writing with consent of both counsel. By 6:15 p.m., the jury was still

deliberating, so the trial court adjourned for the day and reconvened proceedings the

next day at 10:00 a.m.

      The next morning, the courtroom deputy reported that when he opened the door

to the jury room, a juror stated: “[S]he wants out, she can no longer be a part of this,

bring an alternate in, she wants out.” With the consent of the parties, the court

brought in the juror to inquire as to the circumstances.



      The trial court first instructed the juror not to indicate her view on the verdict

nor the view of any other jurors. The juror agreed and explained that one or two other

                                           2
people agreed with her, but she believed they “would be still in that room all week.”

The trial court explained that they had only deliberated for two hours, and they

needed to take more time to deliberate. The juror replied that she tried to complete the

deliberation process, “but I just feel like I don’t want to be a part of it.” The trial court

again explained the jury’s responsibility to examine the evidence and deliberate and

asked if the juror could talk to the other jurors and try and reach a verdict. The juror

responded, “Yes, ma’am, I can do that. We have to have one verdict. And if they keep

what they going on and on[sic], ain’t nobody coming together. . . but I’m not going

to be forced to go along with what they were saying just to put a verdict on the table.

I can’t do that.”

       During the conversation, the juror appeared to be upset and crying, and the trial

court attempted to calm her. As the trial court spoke, the juror repeatedly interrupted

the court. The juror expressed her opinion that she was “very static about the case .

. . I’m solid about the case.” The trial court asked if she would be able to listen to the

other jurors in their deliberations, and the juror responded that “I listened to

everybody’s opinion[,] and that’s what brought me to this point. They are set with

staying with their opinion and not hearing . . . I’m not going to be swayed into go[ing]

that route. I know that.” The court again reminded the juror of the short amount of

                                             3
time they had been deliberating and asked the juror if she could listen to the other

jurors and “try to deliberate and decide the case,” and the juror responded that she

would “try one more time.”

      The juror returned to the jury room, and the courtroom deputy recounted that

he had heard her say the prior day that she had already made her decision. After

hearing from both parties, the court examined case law4 and explained that “I’m not

looking at her saying she’s got a different opinion with somebody else. . . My concern

is the way she . . . approached [the deputy] and she was wanting to leave, wasn’t

wanting to talk to anybody, her mind was made up.” The deputy confirmed that the

juror said “she was wanting to go.” The court also expressed a concern, based on the

juror’s demeanor and repeated interruptions, that the court did not expect the juror to

engage in rational, impartial deliberation with the other jurors. Based on the court’s

inquiry and argument of counsel, the court excused the juror over Bethea’s objection.5

As the juror was being escorted out of the jury room, the juror stated that the other



      4
        The trial court cited Reynolds v. State, 271 Ga. 174, 175 (2) (517 SE2d 51)
(1999), in which the Supreme Court of Georgia affirmed the decision of a trial court
to excuse a juror who became aware that he knew several of the defendant’s relatives
and believed this would impact his decision.
      5
          Bethea made no argument about potential racial bias in the jury composition.

                                           4
jurors were “beginning to do what they’re supposed to be doing in there. . . now

they’re making that decision more where I was – I am.” After further deliberation, the

jury, with the alternate, returned a verdict of guilty as to voluntary manslaughter as

a lesser included offense of felony murder, aggravated assault, and concealing the

death of another. The trial court then merged the aggravated assault count with the

manslaughter count. Bethea’s motion for new trial was denied, giving rise to this

appeal.

      Bethea argues that the trial court erred by excusing the juror and replacing her

with an alternate. We find no basis for reversal.

             OCGA § 15-12-172 provides: “If at any time, whether before or
      after final submission of the case to the jury, a juror dies, becomes ill,
      upon other good cause shown to the court is found to be unable to
      perform his duty, or is discharged for other legal cause, the first alternate
      juror shall take the place of the first juror becoming incapacitated.” The
      trial court must exercise its discretion in removing a juror, and it may
      effect such a removal even after deliberations have begun. There must
      be some sound basis upon which the trial judge exercises his discretion
      to remove the juror. A sound basis may be one which 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 inquiry into the situation is appropriate to



                                           5
      the proper exercise of judicial discretion. Dismissal of a juror without
      any factual support or for a legally irrelevant reason is prejudicial.6


“[A] trial court has broad discretion to determine whether it is appropriate to remove

a juror,”7 and such a ruling is reviewed for an abuse of the court’s discretion.8

      Here, the trial court’s main concern was that the juror was visibly upset and had

reached a fixed and definite opinion so soon after the deliberation began without fully

vetting the evidence with the other jurors. The juror had expressed that her mind was

made up, she “wanted to go,” and she could “no longer be a part of this.” “Legal

cause [for excusing a juror] arises when the court determines, in its sound discretion,

that the juror holds an opinion so fixed and definite that he or she cannot lay it aside

and decide the case on the evidence presented and the court’s charge.”9 Although the

juror did equivocate about her ability to deliberate, there was evidence that she had

reached an unwavering opinion fewer than two hours into the deliberation. Unlike



      6
          (Punctuation omitted.) Butler v. State, 290 Ga. 412, 417 (5) (721 SE2d 876)
(2012).
      7
          Smith v. State, 298 Ga. 357, 360 (3) (782 SE2d 26) (2016).
      8
          See State v. Clements, 289 Ga. 640, 645, n. 5 (715 SE2d 59) (2011).
      9
          Ganas v. State, 245 Ga. App. 645, 648 (3) (537 SE2d 758) (2000).

                                           6
other cases where, for example, a trial court erred by excusing a lone holdout after

more than two days of deliberation,10 there is evidence showing that, very early on,

the juror had ceased deliberating with the other members of the jury and “wanted out”

of the process.

      The fact that the juror eventually stated that [s]he could be impartial
      [and deliberate] does not require the trial court to ignore the numerous
      times [s]he equivocated or the other [evidence] showing that [s]he
      expressed a fixed and definite opinion and does not make the trial
      court’s credibility decision to strike [her] error.11


      Further, the record is clear that, despite excusing the juror, the trial court

carefully considered avoiding excusing the juror simply because she might be in the

minority or a potential holdout. The trial court voiced her concern that jurors not be

removed simply because they were holdouts, saying “the [mere] fact that one juror

does not agree with the other [does] not constitute cause for removal.” Instead, the

court’s basis for excusing her was the juror’s unwillingness to meaningfully

participate in deliberation based on a thorough review of the evidence.


      10
        See, e.g, Mason v. State, 244 Ga. App. 247, 249 (1) (535 SE2d 497) (2000)
(“Contrary to the trial court’s ruling, the juror did not fail to deliberate, but instead
had reached her decision after having fully deliberated for more than two days.”).
      11
           (Punctuation omitted.) Butler, 290 Ga. at 418 (5).

                                           7
      In light of the trial court’s inquiry on the record into the juror’s mind-set and

demeanor, the court’s careful consideration of the relevant concerns, and the juror’s

explicit resistance to deliberation, and the evidence supporting a finding that the juror

held a fixed and definite opinion so early in the process, the trial court did not abuse

its discretion by excusing the juror.12 Accordingly, we discern no reversible error.

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




      12
         See Alford v. State, 244 Ga. App. 234, 237-238 (534 SE2d 103) (2000),
citing Cloud v. State, 235 Ga. App. 721, 722 (510 SE2d 370) (1998).

                                           8
