                              SECOND DIVISION
                                BARNES, P. J.,
                            BOGGS and RICKMAN, 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


                                                                       July 12, 2016




In the Court of Appeals of Georgia
 A16A0020. THE STATE v. DESAI.

      RICKMAN, Judge.

      The State appeals the trial court’s ruling granting Kevin Desai a new trial on

the ground that the court failed to read the petit jury oath mandated by OCGA § 15-

12-1391 prior to the jury commencing deliberations.2 The State argues that because

      1
          OCGA § 15-12-139 provides that:

      In all criminal cases, the following oath shall be administered to the trial
      jury: ‘You shall well and truly try the issue formed upon this bill of
      indictment (or accusation) between the State of Georgia and (name of
      accused), who is charged with (here state the crime or offense), and a
      true verdict give according to the evidence. So help you God.’ The judge
      or clerk shall administer the oath to the jurors.
      2
        The State’s appeal is authorized by OCGA § 5-7-1 (8) (“An appeal may be
taken by and on behalf of the State of Georgia from the . . . state courts . . . [f]rom an
order, decision, or judgment of a court granting a motion for new trial or an
the jurors took the oath before reaching a verdict and there was no evidence of harm,

the trial court erred in its ruling. For the reasons set forth herein, we affirm.

       The pertinent undisputed facts are as follows. Desai was arrested after being

involved in a single-car accident and was charged with, among other things, driving

under the influence of alcohol per se in violation of OCGA § 40-6-391 (a) (5).3 At

trial, after the close of the evidence and the retiring of the jurors to deliberate, the trial

judge realized that she may have forgotten to administer the petit jury oath. She

conducted a brief investigation into the matter, after which she recalled the jurors and

administered the oath. The jurors had been deliberating for approximately 38 minutes

before they were properly sworn, and they reached a verdict within ten minutes of

returning to the jury room.4 The trial court thereafter concluded that its failure to




extraordinary motion for new trial.”).
       3
        Desai was also charged with driving under the influence to the extent he was
less safe in violation of OCGA § 40-6-391 (a) (1) and failure to maintain a lane.
       4
       The jury convicted Desai of driving under the influence of alcohol in violation
of OCGA § 40-6-391 (a) (5) and of failure to maintain a lane, but acquitted him of
driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1).

                                              2
administer the jury oath prior to the commencement of deliberations rendered the trial

a nullity and the court granted Desai a new trial.5 This appeal follows.

      “[T]he petit jury oath provided in OCGA § 15-12-139 is mandatory;

consequently, the failure to administer this oath to the trial jury requires the setting

aside of any conviction based upon the decision of such an unsworn body.” (Citations

and punctuation omitted.) Spencer v. State, 281 Ga. 533, 534 (640 SE2d 267) (2007).

Although its mandate that the trial court give the oath is absolute, the statute does not

otherwise prescribe a specific time for the oath to be given. See OCGA § 15-12-139.

In Adams v. State, 286 Ga. 496, 497-498 (2) (690 SE2d 171) (2010), our Supreme

Court addressed the consequences of giving a belated oath. In that case, the oath was

given after the close of the evidence, but before the jury began to deliberate. See id.

at 496-97 (2). While recognizing that the best practice is to give the oath as soon as

the jury is empaneled, the Court nevertheless held that, “in the absence of a showing

      5
        Concerned about the validity of the trial, the trial court did not enter judgment
on the jury’s verdict. Its subsequent grant of a new trial was authorized by OCGA §
5-5-40 (h) (“The court . . . shall be empowered to grant a new trial on its own motion
within 30 days from entry of the judgment, except in criminal cases where the
defendant was acquitted.”). In a thorough and well-reasoned order, the trial judge
alternatively declared a mistrial and/or granted Desai’s motion for new trial after
setting forth the errors that she had committed related to the petit jury oath and her
investigation into the matter and holding that she could not conclude the errors were
harmless.

                                           3
of actual prejudice, there is no reversible error if a belated oath is given prior to the

jury’s deliberations.” (Citation omitted; emphasis supplied.) Adams, 286 Ga. at 498

(2); see id. at 498, n.5 (2) (“Obviously, the best practice is to give the oath as soon as

the jury is empaneled.”).

      The Adams Court drew a clear distinction between (1) a jury which is never

sworn or not sworn prior to deliberations, and (2) a jury that is belatedly sworn, but

the oath is administered before jury deliberations. Adams, 286 Ga. at 498 (2). This

distinction is reasonable–and even necessary–for several reasons. First, the statutory

oath is “jurisdictional in character,” and is a prerequisite to establishing a “legally

constituted” tribunal with lawful authority to pass on the issues being submitted.

(Citation and punctuation omitted.) Spencer, 281 Ga. at 534; see also Slaughter v.

State, 100 Ga. 323, 326 (28 SE 159) (1897). Second, a sworn jury is an element of an

impartial jury:

      No one can properly be deemed a juror, or competent to act in that
      capacity, until he or she has been duly qualified; and one of the express
      requirements of the law is that, before the juror shall enter upon the
      discharge of his or her duties, the juror must take a solemn oath to the
      effect that the juror will perform his or her office uprightly and
      impartially.



                                            4
(Citation and punctuation omitted.) Spencer, 281 Ga. at 534; see also Slaughter, 100

Ga. at 326. And finally, under double jeopardy principles, “in either the context of a

constitutional claim or that under the extended state statutory protections, jeopardy

does not attach in a jury trial until the jury is both impaneled and sworn.” Spencer,

281 Ga. at 534; see also U. S. Const. Amend. V; OCGA § 16-1-8 (a) (2).

      Here, it is undisputed that the jury was not administered the petit oath prior to

beginning deliberations and, indeed, was not sworn until it had almost rendered a

verdict. We conclude that a belated oath of that nature rendered the jury “fatally

infirm” and the trial a mere nullity. Spencer, 281 Ga. at 534; see Slaughter, 100 Ga.

at 330. The trial court, therefore, did not err in granting Desai a new trial.

      Judgment affirmed. Barnes, P. J., and Boggs, J., concur.




                                           5
