O.C.G.A. § 15-12-142 (2019)

Annotations

Law reviews. - For survey of cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978). For

annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005); 58 Mercer L. Rev. 111 (2006).

JUDICIAL DECISIONS In murder trial, if the state does not seek death penalty it is not error to allow the jury to disperse with appropriate instructions. Dean v. State, 238 Ga. 537, 233 S.E.2d 789 (1977); Cook v. State, 242 Ga. 657, 251 S.E.2d 230 (1978); Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980). Sequestration in capital cases. - Jurors are required to be sequestered in capital cases after their selection to hear

the case. Willis v. State, 243 Ga. 185, 253 S.E.2d 70, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979). Trial court’s sequestration of the jury in the capital murder case despite defendant’s request that the jury not be sequestered under O.C.G.A. § 15-12-142(a) fell squarely within the court’s discretion. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).

Capital defendant’s trial counsel was not ineffective for failing to seek sequestration of the jury under O.C.G.A. § 15-12-142; counsel’s strategy was that allowing dispersal of the jury would give the jurors a more diverse perspective on the evidence, increasing the likelihood of a hung jury or an acquittal, and this strategy was not unreasonable. Williams v. State, 286 Ga. 884, 692 S.E.2d 374 (2010). Sequestration in noncapital cases. - Trial court does not abuse the court’s discretion in failing to sequester a jury in a noncapital case when the court instructed the jury not to discuss the case among themselves or with others during trial recesses. Morgan v. State, 276 Ga. 72, 575 S.E.2d 468 (2003). Trial court did not abuse the court’s discretion in failing to sequester a jury in a noncapital case after the court instructed the jury not to discuss the case among themselves or with others during trial recesses. Fox v. State, 266 Ga. App. 307, 596 S.E.2d 773 (2004). Discretion of court to disperse jury in capital cases. - Discretion of the trial court to disperse the jury only if the death sentence may be imposed is removed. Brinks v. State, 232 Ga. 13, 205 S.E.2d 247 (1974). This section does not prevent dispersal of a jury in a capital case with consent of the defendant. Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977). This section gives the trial court discretion to permit members of the jury to disperse under appropriate instruction except in cases in which the prosecution is seeking the death penalty and even if the prosecution is seeking the death penalty, the trial court may permit jury dispersal with the consent of the accused. Jones v. State, 243 Ga. 820, 256 S.E.2d 907, cert. denied, 444 U.S. 957, 100 S. Ct. 437, 62 L. Ed. 2d 329 (1979). Whenever union and isolation of jury have been broken there arises presumption that defendant has been injured, and it is incumbent upon the state to have rebutted that legal presumption, not only by evidence that the juror did not speak to anyone personally, nor did anyone speak to the juror about the case, but that the juror did not hear anyone express any

opinion in relation to the case. Legare v. State, 243 Ga. 744, 257 S.E.2d 247, cert. denied, 444 U.S. 984, 100 S. Ct. 491, 62 L. Ed. 2d 413 (1979). Even if the sequestration of death penalty jurors is not mandatory, if a defendant gives his or her consent for the jury to be dispersed during trial, a trial court is clearly authorized by O.C.G.A. § 15-12-142(a) to maintain jury sequestration over a death penalty defendant’s objection. Lamar v. State, 278 Ga. 150, 598 S.E.2d 488 (2004). Location of place of sequestration. - In a prosecution for malice murder, the fact that the jurors were sequestered at a motel located only a short distance from the motel in which the crimes took place was not error since no alternative housing options were available and neither impropriety nor prejudice was demonstrated. Burgess v. State, 264 Ga. 777, 450 S.E.2d 680 (1994), cert. denied, 515 U.S. 1133, 115 S. Ct. 2559, 132 L. Ed. 2d 813 (1995). Prosecutorial misconduct not shown. - In denying the defendant’s motion to bar the second prosecution, the trial court observed that during the first trial the prosecutor: (1) may have misrepresented the extent of the prosecutor’s communications with the state crime lab witness; and (2) may have violated the spirit of the rule of sequestration when the prosecutor advised the arresting officer of the evidentiary dilemma presented by the absence of the state crime lab witness. However, the court concluded that the prosecutor’s actions did not rise to the level of prosecutorial misconduct intended to subvert the double jeopardy clause; under the circumstances of this case, the trial court did not abuse the court’s discretion in denying the motion to bar the prosecution. Harris v. State, 212 Ga. App. 120, 441 S.E.2d 255 (1994). Cited in Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956); White v. State, 230 Ga. 327, 196 S.E.2d 849 (1973); Brinks v. State, 232 Ga. 13, 205 S.E.2d 247 (1974); Edwards v. State, 235 Ga. 603, 221 S.E.2d 28 (1975); Jordan v. State, 235 Ga. 732, 222 S.E.2d 23 (1975); Baker v. State, 137 Ga. App. 33, 222 S.E.2d 865 (1975); Anderson v. State, 138 Ga. App. 871, 227 S.E.2d 783 (1976); Perault v. State, 162

Ga. App. 264, 291 S.E.2d 122 (1982); Bailey v. State, 249 Ga. 535, 291 S.E.2d 704 (1982); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982); Roper v. State, 251 Ga. 95, 303 S.E.2d 103 (1983); Benton v. State, 184 Ga. App. 684, 362

T.15, C.12, A.5, P.2

S.E.2d 421 (1987); Peppers v. State, 261 Ga. 338, 404 S.E.2d 788 (1991); Colantuno v. State, 262 Ga. 830, 426 S.E.2d 563 (1993); Edwards v. State, 224 Ga. App. 14, 479 S.E.2d 754 (1996); Bergeson v. State, 272 Ga. 382, 530 S.E.2d 190 (2000).

RESEARCH REFERENCES ALR. - Separation of jury in criminal case, 34 ALR 1115; 79 ALR 821; 21 ALR2d 1088. Separation of members of mixed jury of men and women, 71 ALR 68. Time jury may or must be kept together upon disagreement in civil case, 164 ALR 1265. Separation of jury in criminal case, 21 ALR2d 1088. Permitting jurors to attend theater or the like during course of criminal trial as ground for mistrial, new trial, or reversal, 33 ALR2d 847. Separation or dispersal of jury in civil case after submission, 77 ALR2d 1086. Time jury may be kept together on dis-

agreement in criminal case, 93 ALR2d 627. Taking and use of trial notes by jury, 4 ALR3d 831. Separation of jury in criminal case before introduction of evidence - modern cases, 72 ALR3d 100. Separation of jury in criminal case during trial - modern cases, 72 ALR3d 131. Separation of jury in criminal case after submission of cause - modern cases, 72 ALR3d 248. Criminal law: propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after jury has been discharged, or has reached or sealed its verdict and separated, 14 ALR5th 89.

PART 2 JURIES IN FELONY CASES Cross references. - Provision that jury in criminal case shall be judge of law

and fact, Ga. Const. 1983, Art. I, Sec. I, Para. XI and § 17-9-2.

JUDICIAL DECISIONS Challenges are of two types: (1) challenges to the ‘‘array’’, i.e., challenges to the panels as a whole; and (2) challenges to

the ‘‘poll’’, i.e., challenges to individual jurors. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981).

RESEARCH REFERENCES C.J.S. - 50A C.J.S., Juries, §§ 352, 514. ALR. - Permitting or refusing to permit jury in criminal case to examine or take into jury room the indictment or information or other pleading or copy thereof, 120 ALR 463.

Propriety of substituting juror in bifurcated state trial after end of first phase and before second phase is given to jury, 89 ALR4th 423.