Editor's notes.

- Some of the cases noted under this paragraph were decided under language appearing in the 1976 Constitution (Art. I, Sec. I, Paras. VIII, XI; Art. VI, Sec. IV, Para. VII; Art. VI, Sec. XV, Paras. I, II) and antecedent provisions, all of which dealt with aspects of the right to jury trial now contained in this paragraph.

Altering order in which persons were selected from jury venire was not shown to have failed to produce an array of impartial, properly drawn prospective jurors from which to pick a jury. Franks v. State, 278 Ga. 246, 599 S.E.2d 134 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 870, 160 L. Ed. 2d 784 (2005).

Constitutionality.

- See Sanders v. State, 234 Ga. 586, 216 S.E.2d 838 (1975), cert. denied, 424 U.S. 931, 96 S. Ct. 1145, 47 L. Ed. 2d 340 (1976).

Right to jury trial not violated in plea bargain.

- Defendant's right to a jury trial was not violated by illegal plea bargaining through a threatened longer sentence if the defendant proceeded to trial. Logan v. State, 309 Ga. App. 95, 709 S.E.2d 302, cert. denied, No. S11C1101, 2011 Ga. LEXIS 579; cert. denied, 132 S. Ct. 823, 181 L. Ed. 2d 533 (2011).

Prelitigation contractual waiver of the right to trial by jury is not enforceable in cases tried under the laws of Georgia. Bank S. v. Howard, 264 Ga. 339, 444 S.E.2d 799 (1994).

Jury's importance.

- The jury is as important a branch of the judicial department as the judge. Johnson v. State, 169 Ga. 814, 152 S.E. 76 (1930).

Juror not incompetent on account of having been impaneled in case.

- A juror is not incompetent to testify as a witness solely on account of having been impaneled and sworn in the case, if the juror is otherwise competent. Tumlin v. State, 88 Ga. App. 713, 77 S.E.2d 555 (1953).

Cited in McElroy v. McElroy, 252 Ga. 553, 314 S.E.2d 893 (1984); Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299 (1985); Tutton v. State, 179 Ga. App. 462, 346 S.E.2d 898 (1986); Hughes v. State, 257 Ga. 200, 357 S.E.2d 80 (1987); Freeman v. State, 194 Ga. App. 905, 392 S.E.2d 330 (1990); Quiller v. Bowman, 262 Ga. 769, 425 S.E.2d 641 (1993); Howard v. Bank S., 209 Ga. App. 407, 433 S.E.2d 625 (1993); Burg v. State, 297 Ga. App. 118, 676 S.E.2d 465 (2009).

Origin of phrase "shall remain inviolate".

- The statement in this paragraph that the right of trial by jury shall remain inviolate refers to the right as it existed at common law at the time of the incorporation of this paragraph into the state Constitution, and consequently the expression means that the right of trial, as it existed in England, should be inviolate or unaltered. Wright v. Davis, 184 Ga. 846, 193 S.E. 757 (1937).

A jury trial in Georgia must be governed by the same rules as prevailed in England at the time the Constitution was adopted if there is an absence of any provision in organic law affecting the right of jury trial. Wright v. Davis, 184 Ga. 846, 193 S.E. 757 (1937).

First part of this paragraph is derived from the declarations in the Magna Carta and is subject to the limitations of the common law. Tift v. Griffin, 5 Ga. 185 (1848); Stewart Dunholter & Co. v. Sholl, 99 Ga. 534, 26 S.E. 757 (1896); De Lamar v. Dollar, 128 Ga. 57, 57 S.E. 85 (1907); Pollard v. State, 148 Ga. 447, 96 S.E. 997 (1918).

Right to jury trial cannot be impaired by legislature.

- The right to a jury trial as guaranteed by the state Constitution, i.e., the right shall remain inviolate, are those rights heretofore enjoyed at common law in civil and criminal cases, which cannot be impaired by the legislature. Porter v. Watkins, 217 Ga. 73, 121 S.E.2d 120 (1961).

In a case at common law, a party has a constitutional right to have all questions of fact passed upon by a jury, and a legislative denial of that right is unconstitutional. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).

Preservation of rights to jury trial which existed when Constitution adopted.

- Constitutional right to trial by jury shall not be taken away in cases where it existed when Constitution was adopted in 1798. Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982).

This provision has been uniformly construed as not conferring a right to trial by jury in all classes of cases, but merely as guaranteeing the continuance of the right unchanged as it existed either at common law or by statute at the time of the adoption of the Constitution. Beasley v. Burt, 201 Ga. 144, 39 S.E.2d 51 (1946).

The provision in the Constitution that "trial by jury, as heretofore used, shall remain inviolate" means that it shall not be taken away in cases where it existed when that instrument was adopted in 1798; and not that there must be a jury in all cases. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).

All cases triable without a jury prior to the Constitution may still be so tried.

- It will be conceded that it is competent for the legislature to provide for a trial without a jury in cases similar to those in which such a trial was in use prior to the adoption of the Constitution. Beasley v. Burt, 201 Ga. 144, 39 S.E.2d 51 (1946).

Demand.

- Parties may be required to enter a demand for a jury trial. Sutton v. Gunn, 86 Ga. 652, 12 S.E. 979 (1891) See also Sanders v. Alexander, 23 Ga. App. 563, 99 S.E. 53 (1919).

This paragraph is complied with if a right to jury trial is had before final liability. Hobbs v. Dougherty County, 98 Ga. 574, 25 S.E. 579 (1896); De Lamar v. Dollar, 128 Ga. 57, 57 S.E. 85 (1907).

This paragraph is complied with if a right to jury trial is obtainable on appeal. Davis v. Harper, 54 Ga. 180 (1875); De Lamar v. Dollar, 128 Ga. 57, 57 S.E. 85 (1907).

Retroactive extinguishment of right to trial by jury unconstitutional.

- Retroactive application of the 1977 amendment to O.C.G.A. § 19-7-40, which extinguished the right to a jury trial in a paternity suit, was unconstitutional. Hargis v. Department of Human Resources, 272 Ga. 617, 533 S.E.2d 712 (2000).

This paragraph is not violated by a law requiring payment of costs and giving of bond as a condition precedent to an appeal. Flint River Steamboat Co. v. Foster, 5 Ga. 194, 48 Am. Dec. 248 (1848).

Determination of damages.

- Paragraph (e)(2) of O.C.G.A. § 51-12-5.1, requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury, does not violate Ga. Const. 1983, Art. I, Sec. I, Para. XI. State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994).

Private voir dire on sensitive issues.

- Defendant's right to a public trial was not violated by the trial court's conduct of certain portions of voir dire in a private jury room rather than in open court because the defendant's counsel agreed that jurors should have a private opportunity to answer questions of a sensitive nature, including jurors' attitudes toward homosexuality and jurors' prior arrests, and the right to a public trial gave way to the right for a fair trial. State v. Abernathy, 289 Ga. 603, 715 S.E.2d 48 (2011).

Common-law right continued.

- In civil actions, the right of a jury trial exists only when the right existed prior to the first Georgia Constitution, and the Constitution guarantees the continuance of this right unchanged as it existed at common law. Strange v. Strange, 222 Ga. 44, 148 S.E.2d 494 (1966).

Expert affidavit requirement in medical malpractice cases did not violate jury trial right.

- O.C.G.A. § 24-7-702(c)(2)(A), governing expert qualifications in medical malpractice cases, was not unconstitutionally vague, did not violate equal protection, separation of powers, or the right to jury trial, did not make irrevocable grants of special privileges and immunities, and was not a special law; however, the trial court erred in rejecting an expert simply because the expert had not performed the specific procedure at issue. The proper consideration was the expert's level of knowledge. Zarate-Martinez v. Echemendia, 299 Ga. 301, 788 S.E.2d 405 (2016).

Party to civil action is entitled to trial by jury when issuable defense is filed. Whitaker & Rambo Interior Designs, Inc. v. Prudential Property Cas. Ins. Co., 510 F. Supp. 97 (N.D. Ga. 1981).

When complaint fails to state claim, dismissal of claim is not error even though complainant has made demand for jury trial, and does not contravene the provisions of Ga. L. 1966, p. 609, §§ 38 and 40 (see now O.C.G.A. §§ 9-11-38 and9-11-40), and this paragraph. Bush v. Morris, 123 Ga. App. 497, 181 S.E.2d 503 (1971).

There is no constitutional right to jury trial in equity cases even when questions of fraud are involved. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973); Burns v. Ledbetter, Inc. v. Primark Marking Co., 244 Ga. 341, 260 S.E.2d 58 (1979); Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982).

Because in equity cases the right of trial by jury is not constitutional, but statutory, and a legislative restriction thereof would be constitutional. Mahan v. Cavender, 77 Ga. 118 (1886); Bemis v. Armour Packing Co., 105 Ga. 293, 31 S.E. 173 (1898); Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).

A case begun as an action to enforce an equitable lien on funds held by a defendant and concluded as an interpleader action after the funds were paid into the registry of the court by the stockholder is a case in equity in which there is no right to trial by jury. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).

Jury trial in chancery not constitutional right.

- The interposition of juries in trial of chancery cases is purely a matter of legislative regulation. It is not a constitutional right or one guaranteed by Magna Charta. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).

Right to trial by jury in a contempt proceeding was not conferred by this provision of the Constitution. Hortman v. Georgia Bd. of Dental Exmrs., 214 Ga. 560, 105 S.E.2d 732 (1958).

Right to trial by jury in a contempt proceeding for violation of mandamus not conferred.

- In a proceeding for contempt against the defendant, growing out of the defendant's alleged violation of a mandamus absolute, the defendant is not entitled to a trial by a jury when an issue of fact is raised. Gaston v. Shunk Plow Co., 161 Ga. 287, 130 S.E. 580 (1925).

Right to jury trial in contempt proceeding for violation of injunction not conferred.

- Respondent was not entitled to trial by jury in a contempt proceeding on the issue of whether or not the respondent had violated an injunctive order prohibiting the respondent from practicing dentistry without a license, as such case did not fall within the class of proceedings for contempt provided for in former Code 1933, § 24-105 (see now O.C.G.A. § 15-1-4) wherein a jury trial was required. Hortman v. Georgia Bd. of Dental Exmrs., 214 Ga. 560, 105 S.E.2d 732 (1958).

When the order simply enjoined the defendants from operating the plant "in a manner so as to create foul and offensive odors that can be smelled in petitioners' homes," the jury was not called upon to interpret the meaning of the order, but rather to determine the factual question of whether the plant was still emitting offensive odors. The submission of such question to the jury has long been considered as being within the discretion of the trial court. Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290, 116 S.E.2d 288 (1960).

Right to jury trial not conferred when receiver held in contempt. Tindall v. Westcott, 113 Ga. 1114, 39 S.E. 450, 55 L.R.A. 225 (1901).

Defendants in contempt case do not have constitutional right to jury trial even on pure questions of fact. Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290, 116 S.E.2d 288 (1960).

Judge possesses discretion to invoke jury's aid when advisable.

- The presiding judge, if the judge deems it proper, may determine, without aid of a jury, all questions of fact arising upon the auditor's report; but inasmuch as the case upon which the contempt proceedings were founded is one in which the court is exercising chancery powers, there is no reason why the judge may not, if such course seems advisable to the judge, invoke the aid of a jury in arriving at a proper conclusion upon the questions of fact presented. It is a matter of discretion as to what method the judge will adopt to arrive at the actual truth to be ascertained. Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290, 116 S.E.2d 288 (1960).

Jury trial right in most cases.

- The Constitution of Georgia, as well as the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, guarantee the right of a jury trial to civil litigants in most cases. Raintree Farms, Inc. v. Stripping Ctr., Ltd., 166 Ga. App. 848, 305 S.E.2d 660 (1983).

There is no constitutional right to a jury trial in eminent domain cases. DOT v. Gibson, 251 Ga. 66, 303 S.E.2d 19 (1983).

There is no constitutional right to a jury trial in garnishment proceedings. Worsham Bros. Co. v. FDIC, 167 Ga. App. 163, 305 S.E.2d 816 (1983).

Georgia garnishment law is a special statutory proceeding enacted subsequent to the first Georgia Constitution and is in derogation of the common law. Thus, a garnishment action is not a civil action of such a nature in which a trial by jury is guaranteed. Mull v. Mull, 167 Ga. App. 687, 307 S.E.2d 675 (1983).

No right to jury trial if case best handled by summary judgment.

- Because the Seventh Amendment to the U.S. Constitution did not apply in state courts, and an insured's right to a jury trial thereunder was not infringed when genuine issues of material fact were lacking and disposition of the matter was best handled by way of summary judgment, the insured's Seventh Amendment right to a jury trial was not infringed; as a result, the insured failed to demonstrate any constitutional deprivation warranting a 42 U.S.C. § 1983 action. Cuyler v. Allstate Ins. Co., 284 Ga. App. 409, 643 S.E.2d 783, cert. denied, 2007 Ga. LEXIS 510 (Ga. 2007).

Trial court did not violate a purchaser's right to a jury trial under the Georgia Constitution or O.C.G.A. § 9-11-38 by granting summary judgment to a lender because the right to a jury trial was not infringed as the jury would have no role since there were no issues of material fact in dispute. Leone v. Green Tree Servicing, LLC, 311 Ga. App. 702, 716 S.E.2d 720 (2011).

Arbitration.

- Local court rule, requiring parties to timely appeal the adverse ruling of an arbitration board if they desired to pursue a jury trial, did not deny them their constitutional right to a jury trial when they were given a reasonable opportunity to demand a jury trial and waived their right to a jury trial by failing to file a timely demand. Tippins v. Winn-Dixie Atlanta, Inc., 192 Ga. App. 172, 384 S.E.2d 199, cert. denied, 192 Ga. App. 172, 384 S.E.2d 199 (1989).

Local court rule provision that a trial de novo be available only upon demand after nonbinding arbitration did not deny the right to a jury trial. Davis v. Gaona, 260 Ga. 450, 396 S.E.2d 218 (1990).

Probate court.

- Probate court did not err by failing to conduct a jury trial on the construction of a decedent's will as the decedent's will was unambiguous and no issues of fact remained; further, the corporation challenging the construction was not authorized under Georgia law to serve as a corporate trustee. Chattowah Open Land Trust, Inc. v. Jones, 281 Ga. 97, 636 S.E.2d 523 (2006).

Waiver of right to jury trial in probate proceeding.

- Trial court had subject matter jurisdiction to review the probate court's decision under Ga. Const. 1983, Art. VI, Sec. IV, Para. I and O.C.G.A. § 15-6-8(4)(E) to deny probate of the decedent's 1988 will and the parties' waiver of the statutory right to a jury trial did not deprive the trial court of subject matter jurisdiction to deny probate of the will. Mosley v. Lancaster, 296 Ga. 862, 770 S.E.2d 873 (2015).

Husband did not waive right to jury trial.

- Trial court erroneously denied a husband's motion for a new trial and to set aside the decree of divorce, as the husband's actions in showing up 45 minutes late in answering a calendar call did not amount to either an expressed or implied waiver of an asserted right to a jury trial, and the husband did not expressly consent to a bench trial. Walker v. Walker, 280 Ga. 696, 631 S.E.2d 697 (2006).

Dismissed employee had no constitutional right to trial by jury on the employee's claim for back pay under the Georgia Equal Employment for the Handicapped Code, O.C.G.A. § 34-6A-1 et seq. Smith v. Milliken & Co., 189 Ga. App. 897, 377 S.E.2d 916 (1989).

Right to trial by jury in action on subrogation lien.

- When pursuing its subrogation rights, a workers' compensation insurer is not entitled to a jury trial on the question of whether the injured employee has been fully and completely compensated under O.C.G.A. § 34-9-11.1(b). Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 535 S.E.2d 511 (2000).

No right to jury trial in appeal from adverse decision of policemen's pension fund board.

- There is no constitutionally protected right to a trial by jury in an appeal from an adverse decision of the policemen's pension fund board, only the election provided by statute (Ga. L. 1953, pp. 2707, 2710) enabling the appellant to obtain a jury trial upon a proper application within a limited 30-day period. Simmons v. Board of Trustees, 167 Ga. App. 511, 306 S.E.2d 759 (1983).

Right to trial by jury does not apply to special proceedings of a summary character. Hartman v. Georgia Bd. of Dental Exmrs., 214 Ga. 560, 105 S.E.2d 732 (1958); Williams v. State, 138 Ga. App. 662, 226 S.E.2d 816 (1976).

No right to jury trial in proceedings to collect taxes.

- As a general rule, there is no right under general constitutional provisions to a jury trial in statutory or summary proceedings for the collection of taxes. Hicks v. Stewart Oil Co., 182 Ga. 654, 186 S.E. 802 (1936).

A bond validation proceeding is not one of the class of cases in which jury trials have ever existed as a matter of right, and it does not fall within this paragraph. Steadham v. State, 224 Ga. 78, 159 S.E.2d 397, cert. denied, 393 U.S. 825, 89 S. Ct. 87, 21 L. Ed. 2d 96 (1968).

Right to jury trial not denied by issuing writ of possession.

- A request for jury trial and demand for a court reporter is no "answer" to a petition for a writ of possession. The trial court is therefore mandated by law to issue the writ of possession, which does not amount to a denial of the constitutional right to a jury trial. Banks v. Borg-Warner Acceptance Corp., 168 Ga. App. 46, 308 S.E.2d 54 (1983).

A debtor's constitutionally guaranteed right to a jury trial was not infringed when the trial court issued a writ of possession without the benefit of a jury since there were no issues of material fact in dispute. Bledsoe v. Central Ga. Prod. Credit Ass'n, 180 Ga. App. 598, 349 S.E.2d 821 (1986).

No right to trial by jury exists in habeas corpus cases, and certainly not in juvenile courts when the state as parens patriae created the juvenile court with powers in the nature of habeas corpus for the protection of children. Porter v. Watkins, 217 Ga. 73, 121 S.E.2d 120 (1961).

Appeal to superior court from condemnation award.

- There is no state constitutional right to a jury trial with respect to proceedings of statutory origin unknown at the time the Georgia Constitution was adopted. An appeal to the superior court from a special master's condemnation award is such a proceeding. Benton v. Georgia Marble Co., 258 Ga. 58, 365 S.E.2d 413 (1988).

Applicability to dispossessory actions.

- Georgia Constitution provides for the right of trial by jury in dispossessory actions. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 409 S.E.2d 71, cert. denied, 200 Ga. App. 897, 409 S.E.2d 71 (1991).

Verdict on unconditional contract without jury valid.

- When a suit on an unconditional contract in writing was in default, and a verdict was taken therein, and a judgment was signed by the judge thereon, such judgment was not void because a verdict was taken, but was a valid judgment. Hayes v. International Harvester Co. of Am., 52 Ga. App. 328, 183 S.E. 197 (1935).

When no issuable defense is filed under oath or affirmation, the court does not err in striking a defendant's answer and rendering judgment without verdict of a jury for the plaintiff in a civil case founded on an unconditional contract. Belt v. Georgia Bank & Trust Co., 115 Ga. App. 545, 154 S.E.2d 764 (1967).

This paragraph was not violated when facts were not submitted to jury in case dealing with validation of municipal bonds. Lippett v. City of Albany, 131 Ga. 629, 63 S.E. 33 (1908).

This paragraph was not violated by former Penal Code 1910, §§ 295 and 296 (see now O.C.G.A. § 45-11-4), which provided a penalty for malpractice by a justice of the peace. Kent v. State, 18 Ga. App. 30, 88 S.E. 913 (1916).

This paragraph was not violated by former Code 1933, § 60-101 (see now O.C.G.A. § 44-2-40 et seq.). Crowell v. Akin, 152 Ga. 126, 108 S.E. 791, 19 A.L.R. 51 (1921); Saunders v. Staten, 152 Ga. 142, 108 S.E. 797 (1921).

Contest of city elections.

- This paragraph was not violated when facts were not submitted to the jury concerning contest of election of city officers. Hill v. Mayor of Dalton, 72 Ga. 314 (1884); Freeman v. State ex rel. McDonald, 72 Ga. 812 (1884).

This paragraph was not violated when facts were not submitted to jury in case resulting in verdict on a foreign judgment. Stewart Dunholter & Co. v. Sholl, 99 Ga. 534, 26 S.E. 757 (1896).

This paragraph was not violated by Ga. L. 1909, § 9, creating a Board of Road and Revenue (now Board of Commissioners) and providing its duties, and for the removal of members of such board. Smith v. Duggan, 153 Ga. 463, 112 S.E. 458 (1922).

Former Civil Code 1910, § 1741 (see now O.C.G.A. § 43-34-37) was not unconstitutional as violative of this paragraph. Lewis v. State Bd. of Medical Exmrs., 162 Ga. 263, 133 S.E. 469 (1926).

Ga. L. 1958, p. 34, § 34 (see now O.C.G.A. Art. 2, Ch. 11, T. 19) is not unconstitutional in that it does not provide a jury trial for a divorced father when he is sued by his former wife for the future support of their minor children who are in her custody. Strange v. Strange, 222 Ga. 44, 148 S.E.2d 494 (1966).

Because it was of statutory origin and was unknown to the common or statutory law of England prior to Georgia's first Constitution, a proceeding under Ga. L. 1958, p. 34, § 34 (see now O.C.G.A. Art. 2, Ch. 11, T. 19), did not entitle the father of the minor children to a jury trial as a constitutional right. Strange v. Strange, 222 Ga. 44, 148 S.E.2d 494 (1966).

Because an action for recovery of environmental costs was unknown in 1798 when the Georgia Constitution was adopted, defendants suing under O.C.G.A. § 12-8-96.1(a) of the Georgia Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq., had no right to a jury trial on the issue of whether the actual costs were reasonable, but they were entitled to a jury trial on the issue of punitive damages. Reheis v. Baxley Creosoting & Osmose Wood Preserving Co., 268 Ga. App. 256, 601 S.E.2d 781 (2004).

Crop lien foreclosure statute.

- There is no right to a jury trial in an action under the Georgia Crop Lien Foreclosure Statute, O.C.G.A. § 44-14-340. Bitt Int'l Co. v. Fletcher, 259 Ga. App. 406, 577 S.E.2d 276 (2003).

Exceptions to an auditor's report must be submitted to the jury. Cook v. Commissioners of Houston County, 62 Ga. 223 (1879); Weed v. Gainesville, Jefferson & S.R.R., 119 Ga. 576, 46 S.E. 885 (1904).

Jury verdict on exceptions of fact to auditor's report is a constitutional prerequisite to valid judgment when there is no semblance of a waiver of the jury in the record. Simonton Constr. Co. v. Pope, 213 Ga. 360, 99 S.E.2d 216 (1957).

Attorney's fees.

- Since attorney fees were not allowable at common law, there is no constitutional right to a jury trial on the issue of attorney fees. Hudson v. Abercrombie, 258 Ga. 729, 374 S.E.2d 83 (1988).

Statutory cap on noneconomic damages in medical malpractice cases.

- Statutory limitation of awards of noneconomic damages in medical malpractice cases to a predetermined amount was unconstitutional because it violated the right to a jury trial guaranteed by Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), and the statute was wholly void and of no force and effect from the date of the statute's enactment. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 691 S.E.2d 218 (2010).

Jury trial not authorized for recovery of appellate costs.

- Because O.C.G.A. § 5-6-5 was enacted in 1845, the statutory procedure for the recovery of appellate costs was unknown in 1798, the year the Georgia Constitution was enacted, and there was no right to jury trial under Ga. Const. 1983, Art. I, Sec. I, Para. XI(a). Mize v. First Citizens Bank & Trust Co., 302 Ga. App. 757, 691 S.E.2d 648 (2010).

Notice of indictment.

- For purposes of a speedy trial claim, because there were no charges pending at the time of the defendant's departure from the United States, the defendant was under no obligation to apprise the court of a change of address; thus, the 2009 notice sent to a prior address of the defendant was not proof that the defendant had notice of the indictment, and the remaining evidence supported the trial court's conclusion that the defendant was first apprised of the pending charges in 2013. State v. Wood, 338 Ga. App. 181, 790 S.E.2d 84 (2016).

Assertion of speedy trial right.

- Defendant was not precluded from even asserting a constitutional speedy trial right on the basis of being out of the reach of the court system by being in another country because the federal case law on that issue was only persuasive, and not binding, authority; and it was dicta. State v. Wood, 338 Ga. App. 181, 790 S.E.2d 84 (2016).

Right to jury trial attaches when the maximum penalty for an offense exceeds six months' imprisonment. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978).

This paragraph requires the right of jury trial in cases of felonies. Mattox v. State, 115 Ga. 212, 41 S.E. 709 (1902); Pollard v. State, 148 Ga. 447, 96 S.E. 997 (1918).

Right to jury trial attaches in both felony and misdemeanor cases.

- Only in cases concerning truly petty crimes, if the deprivation of liberty is minimal, does the defendant have no constitutional right to trial by jury. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978).

Right to jury trial does not apply to police courts of cities and towns and arrests and trial, with fine and imprisonment therein, under ordinances thereof. Williams v. City Council, 4 Ga. 509 (1848); Floyd v. Commissioners of Eatonton, 14 Ga. 354, 58 Am. Dec. 559 (1853); Hill v. Mayor of Dalton, 72 Ga. 314 (1884); Pearson v. Wimbish, 124 Ga. 701, 52 S.E. 751, 4 Ann. Cas. 501 (1906).

Right of jury trial is not required in trial of violators of municipal ordinances. Hill v. Mayor of Dalton, 72 Ga. 314 (1884); Tindall v. Westcott, 113 Ga. 1114, 39 S.E. 450, 155 L.R.A. 225 (1901); Pearson v. Wimbish, 124 Ga. 701, 52 S.E. 751, 4 Ann. Cas. 501 (1906).

Exercise of rights should not be impeachment grounds.

- Neither the initial right to exercise the right to trial by jury, nor a subsequent decision to waive that right and plead guilty, should be viewed as a "lie" or ammunition for impeachment. Brown v. State, 228 Ga. App. 281, 491 S.E.2d 488 (1997).

Indictment need not state statutory aggravators.

- Trial court did not err by denying a defendant's motion to quash an indictment, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), because the face of the indictment did not contain the statutory aggravators for the death penalty; the state was not required to list the statutory aggravators in the indictment. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).

Defendant was entitled to trial by jury when indicted for zoning violation punishable as misdemeanor.

- An indictment charging violation of a county zoning ordinance is a charge of a violation of state law for failure to comply with the local zoning ordinances and when such violation is a misdemeanor under state law the defendant is entitled to trial by jury. Clark v. State, 157 Ga. App. 486, 277 S.E.2d 738 (1981).

Right not violated in death penalty case.

- O.C.G.A. § 17-10-30, enumerating the statutory aggravating factors in a death penalty case, was not unconstitutional under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI as applied in defendant's case; the jury found beyond a reasonable doubt the existence of the statutory aggravating circumstances, there was no requirement that the jury find non-statutory aggravating factors beyond a reasonable doubt, and the non-statutory aggravating evidence presented by the state was reliable and admissible. 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).

O.C.G.A.

§ 40-13-60 manifestly infringes on constitutional right. - O.C.G.A. § 40-13-60 manifestly infringes on Ga. Const. 1983, Art. I, Sec. I, Para. XI insofar as it denies a criminal defendant, who is subject to potential punishment as a misdemeanant, the right to trial by jury; eliminating the language in O.C.G.A. § 40-13-60 that seemingly restricts a traffic violator to a bench trial would not undermine the general intent and overall scheme of O.C.G.A. § 40-13-50 et seq. and would not require that the remainder of the statutory scheme be invalidated. Geng v. State, 276 Ga. 428, 578 S.E.2d 115 (2003).

Withdrawing case from jury.

- The right to the presumption of innocence is so strong that when the defendant, who had previously plead not guilty, admitted every material element of the crimes charged in the defendant's testimony, it was error to withdraw from the jury the issue of the defendant's guilt or innocence. Bryant v. State, 163 Ga. App. 872, 296 S.E.2d 168 (1982).

Waiver of jury trial as delay tactic prohibited.

- When the defendant was represented by counsel when the defendant waived the right to a jury trial in writing, the defendant twice requested a continuance to obtain a mental examination that the defendant refused to complete, the defendant subsequently terminated defense counsel and obtained new counsel, and the defendant first asked to revoke the defendant's jury trial waiver on the day of trial when the defendant asked for another new counsel, the trial court properly denied the request and properly found that the request was a mere dilatory tactic and that to grant the request would have substantially delayed the cause of justice. Bennett v. State, 262 Ga. App. 800, 586 S.E.2d 704 (2003).

Waiver of constitutional rights in guilty plea.

- Habeas court's finding that a petitioner's guilty pleas were validly entered was reversed as the waiver forms signed by the petitioner and reviewed with the petitioner by the petitioner's attorneys addressed only the right to be tried by a jury; the waiver forms did not advise the petitioner that the petitioner was waiving the petitioner's right against self-incrimination and the petitioner's confrontation right. Beckworth v. State, 281 Ga. 41, 635 S.E.2d 769 (2006).

Waiver valid.

- Evidence supported a trial court's finding that a defendant knowingly and voluntarily waived the defendant's right to a jury trial as the defense counsel testified that: (1) the defense counsel explained to the defendant on several occasions the defendant's right to a jury trial and the ramifications of that right; (2) the counsel explained the difference between a jury trial and a bench trial and recommended that the defendant waive that right in favor of a bench trial and take the defendant's chances with an appeal of the denial of a motion to suppress; and (3) the defendant indicated to the counsel that the defendant understood the defendant's rights and the strategy and affirmatively agreed to go forward with a bench trial. Fleming v. State, 282 Ga. App. 373, 638 S.E.2d 769 (2006).

Because the state presented sufficient extrinsic evidence showing that the defendant knowingly and voluntarily waived a jury trial, even though this evidence conflicted with the defendant's later testimony at the hearing on the motion for a new trial, the trial court did not err in denying the defendant a new trial. Davis v. State, 287 Ga. App. 783, 653 S.E.2d 107 (2007).

Failure to object to juror.

- Because the defense counsel only sought to have a juror removed before the second day of a three-day jury trial based on that juror's acquaintance with three state witnesses, did not ask the jury pool questions related to such information during voir dire, and did not move for a mistrial when the issue arose during trial, the defendant waived any claim that a Sixth Amendment right to a jury trial was violated, and the trial court was not required to grant a mistrial, sua sponte; moreover, because the excused juror was not questioned about any familiarity with the witnesses during voir dire, that juror's selection to sit on the panel was not the result of any concealment or misleading statements. Artega v. State, 282 Ga. App. 751, 639 S.E.2d 634 (2006).

Drug forfeiture proceedings.

- There is no constitutional right to a jury trial in state drug forfeiture proceedings, as mandated by paragraphs (o)(5) and (p)(6) of O.C.G.A. § 16-13-49. Swails v. State, 263 Ga. 276, 431 S.E.2d 101, cert. denied, 510 U.S. 1011, 114 S. Ct. 602, 126 L. Ed. 2d 567 (1993).

Right to public trial denied when trial held in county jail.

- Defendant was denied the right to a public trial under the Sixth Amendment of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) when the defendant's trial was held in a county jail because the produced unrebutted evidence that jail authorities excluded from the jail courtroom the defendant's brother, a member of the public who wanted to attend the trial; the closure of the courtroom to the brother was neither brief nor trivial as the brother was kept out of the courtroom during the entire trial, which involved criminal charges brought against the defendant in regard to a family member, and the trial court, by deciding to hold the defendant's trial in a facility where the public's access was governed exclusively by the jail authorities, failed in the court's obligation to take reasonable measures to accommodate public attendance at the trial. Purvis v. State, 288 Ga. 865, 708 S.E.2d 283 (2011).

Abuse of discretion to prohibit questions on subject matter during voir dire.

- Trial court abused the court's discretion in prohibiting the defendant from asking voir dire questions of prospective jurors as to whether the jurors would automatically impose the death penalty, as opposed to fairly considering all three sentencing options (death, life without parole, and life with the possibility of parole) in a case involving the murder of young children as such questioning was permitted under O.C.G.A. § 15-12-133. Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012).

Right to public trial subject to administration of justice.

- The right to a public trial has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice. Lowe v. State, 141 Ga. App. 433, 233 S.E.2d 807 (1977).

Press not protected in obstructing administration of justice by courts.

- Constitution of Georgia guarantees the liberty of speech and of the press, but does not protect an abuse of that liberty, and obstructing the administration of justice by the courts of this state is an abuse of that liberty and will subject the abuser to punishment for contempt of court. Atlanta Newspapers, Inc. v. State, 216 Ga. 399, 116 S.E.2d 580 (1960).

Judge may for any special reason exclude certain spectators from courtroom. Tilton v. State, 5 Ga. App. 59, 62 S.E. 651 (1908).

Judge may for any special reason exclude certain spectators from courtroom.

- The trial court did not violate O.C.G.A. § 17-8-57 by expressing to two jurors an opinion that the defendant was guilty, as the court merely sought to determine whether the two jurors should be excused from further service because of their relationship with the defendant's family and resolved the issue in the manner the defendant requested; moreover, the defendant's right to a public trial was not violated when the trial judge ordered the spectators out of the courtroom at this time, as the judge was accommodating a request of one of the jurors for a more private setting. Berry v. State, 282 Ga. 376, 651 S.E.2d 1 (2007).

No error excluding spectators for lack of space.

- Trial court did not err when the court indicated that spectators would need to be excluded from the courtroom during voir dire because of limited space since the defendant never objected and failed to show that any spectators were barred from or sent out of the courtroom. Martinez v. State, 318 Ga. App. 254, 735 S.E.2d 785 (2012).

Permissible to exclude spectators during part of rape trial.

- When, on the trial of one accused of rape, the alleged victim is unable to give the victim's testimony before a crowd of spectators, and it appears that the due administration of justice is thereby impeded, the trial judge may clear the courtroom, during the examination of the victim, without infringing upon the defendant's right to a public trial. Moore v. State, 151 Ga. 648, 108 S.E. 47 (1921), appeal dismissed, 260 U.S. 702, 43 S. Ct. 98, 67 L. Ed. 471 (1922).

Failure to object to exclusion of defendant's parents during child victim's testimony.

- Because the defendant failed to object to the exclusion of the defendant's parents from the courtroom, and the failure did not amount to plain error, the appeals court rejected the defendant's contentions on appeal that O.C.G.A. § 17-8-54 was violated, as was the defendant's right to public trial; moreover, the appeals court declined to extend the plain error doctrine to the instant facts. Delgado v. State, 287 Ga. App. 273, 651 S.E.2d 201 (2007).

Excluding juveniles.

- In a prosecution for aggravated sodomy and incest, there was no abuse of discretion on the part of the trial court in excluding juvenile spectators from the courtroom and no violation of the appellant's right to a public trial. Parker v. State, 162 Ga. App. 271, 290 S.E.2d 518 (1982).

There was no abuse of discretion of court in exclusion of spectators during testimony of one witness who was in fear of possible harm because of testimony to be given. Lowe v. State, 141 Ga. App. 433, 233 S.E.2d 807 (1977).

Defendant failed to show that the trial court violated the defendant's right to a public trial after the court cleared the courtroom of nonessential personnel when the youngest victim testified because the defendant did not identify any specific people or category of people that were wrongly evicted. Clark v. State, 309 Ga. App. 749, 711 S.E.2d 339 (2011).

Closure of court room while victim testified.

- Despite sufficient evidence supporting the defendant's convictions for incest, statutory rape, and other crimes committed against the defendant's step-daughter, a new trial was ordered because the trial court erred by closing the courtroom when the step-daughter testified without making findings adequate to support the closure, including a consideration of reasonable alternatives, and the only remedy was a new trial. Jackson v. State, 339 Ga. App. 313, 793 S.E.2d 201 (2016).

Defendant entitled to make appearance free from shackles or bonds.

- A defendant being tried for a criminal offense on a plea of not guilty was entitled, at common law, to make an appearance free from all shackles or bonds. This is also the present rule, and the right is recognized as an important component of a fair and impartial trial. McKenzey v. State, 138 Ga. App. 88, 225 S.E.2d 512 (1976).

Shackling of defendant, which continued throughout the defendant's trial for aggravated assault and obstruction of an officer, injected partiality into the trial, infringed upon defendant's presumption of innocence and prevented the fundamental fairness which attends a trial by jury. Mapp v. State, 197 Ga. App. 7, 397 S.E.2d 476 (1990).

After the defendant wrote threatening letters, it was reasonable for the court to impose additional security measures, but since the court neither considered intermediate security measures or alternate restraints, even though defense counsel offered to suggest such measures for the court's consideration, nor did the court take precautions to shield the restraints from the jury's view, the use of obvious physical restraints (i.e., shackling of the defendant) was an abuse of discretion. Hicks v. State, 200 Ga. App. 602, 409 S.E.2d 82 (1991).

While in the absence of exceptional circumstances, the trial court abused the court's discretion by requiring the defendant to remain shackled during trial, the decision was harmless error since the trial court made efforts to avoid bringing the shackles to the jury's attention and two co-defendants, also shackled, were acquitted. Reid v. State, 210 Ga. App. 783, 437 S.E.2d 646 (1993).

Although the defendant was obstreperous in unceasingly proclaiming that the defendant was entitled to a different lawyer and that the defendant's rights were being violated, the trial judge failed to properly exercise judicial discretion in the manner in which the judge attempted to control the defendant because there was no evidence that binding and gagging was used as a last resort among reasonable and less prejudicial alternatives, which included removing the defendant from the courtroom until the defendant was willing to be present without disruption. Weldon v. State, 247 Ga. App. 17, 543 S.E.2d 56 (2000).

Physical restraints on defendant at trial.

- When physical restraints are necessary and are observed by the jury in a criminal case, the trial court must instruct the jury that the use of physical restraints on the defendant has no bearing on the defendant's guilt or innocence and should not be considered by them during their deliberations. Hicks v. State, 200 Ga. App. 602, 409 S.E.2d 82 (1991).

When physical restraints are necessary and are observed by the jury in a criminal case, the trial court must instruct the jury that the use of physical restraints on the defendant has no bearing on the defendant's guilt or innocence and should not be considered by them during their deliberations. Allen v. State, 248 Ga. App. 79, 545 S.E.2d 629 (2001).

Defendant entitled to panel of qualified jurors not panel of preferred jurors. Smith v. State, 245 Ga. 205, 264 S.E.2d 15 (1980).

Jurors may be placed upon their voir dire, and examined as to their impartiality. Sullivan v. Padrosa, 122 Ga. 338, 50 S.E. 142 (1905).

Defendant may ask jurors whether family members worked for law enforcement agencies.

- The trial court errs in limiting voir dire of the jurors by refusing to allow the defendant to ask the panel whether members of the jurors' immediate families have ever worked for law enforcement agencies. Henderson v. State, 251 Ga. 398, 306 S.E.2d 645 (1983).

Determination of competence of juror.

- To disqualify a juror in a criminal case, the juror must have formed and expressed an opinion, either from witnessing the crime or having heard sworn testimony concerning it; one who from some other sources had formed and expressed an opinion which is not fixed and determined and who indicates one's competency by answering the statutory questions on voir dire is not an incompetent juror. Griffeth v. State, 154 Ga. App. 643, 269 S.E.2d 501 (1980).

Jurors exposed to anti-drunk driving poster during DUI trial.

- Defendant, charged with driving under the influence, was not deprived of a fair trial since the six empaneled jurors who were exposed to an anti-drunk driving poster responded affirmatively when they were asked by defense counsel, "Can you dismiss that poster from your minds and say to me with absolute certainty that it has no bearing on your minds and would have no bearing on this case?". Bryant v. State, 201 Ga. App. 305, 410 S.E.2d 778 (1991).

Requirements for establishing denial of impartial jury.

- Under the Sixth Amendment, in order for an appellant to establish the denial of the appellant's right to an impartial jury, the appellant must show either actual juror partiality or circumstances inherently prejudicial to that right. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

In order to support a finding that the defendant did not receive a fair trial, defendant must show: (1) that the setting of the trial was inherently prejudicial; or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Taft v. State, 154 Ga. App. 566, 269 S.E.2d 69 (1980).

Factors which indicate right to impartial jury not presumptively violated.

- Given the absence of any evidence of actual juror prejudice, the remoteness in time between publicity and trial, and the eventual admission of the prejudicial information into evidence, the right to an impartial jury has not been presumptively violated. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

Juror impartial.

- Trial court did not abuse its discretion in denying a motion for new trial pursuant to O.C.G.A. § 5-5-25 after defendant was convicted of criminal charges arising from an incident involving an ex-girlfriend; the fact that one juror indicated that the juror's daughter went to school with the victim's daughter and the daughters had a sleepover a year earlier at the victim's house did not create actual juror partiality or circumstances that were inherently prejudicial to defendant's right to an impartial jury under Ga. Const. 1983, Art. I, Sec. I, Para. XI. Sims v. State, 276 Ga. App. 246, 622 S.E.2d 909 (2005).

Juror's extrajudicial knowledge regarding appellant's present crime represents serious potential for prejudice to that appellant's right to an impartial jury, but such potential can be discounted under U.S. Const., amend. 6, if review of the pretrial publicity and total voir dire fails to demonstrate that the "totality of the circumstances" were inherently prejudicial. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

Juror who found joint defendant guilty is incompetent. McKay v. State, 6 Ga. App. 527, 65 S.E. 306 (1909).

Prejudicial circumstances can impeach juror's declaration of impartiality.

- Circumstances inherently prejudicial to the appellant's right to an impartial jury can impeach a juror's declaration of impartiality. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

No deprivation of right when juror called as witness for state.

- The defendant in a criminal case is not deprived of the right of trial by a fair and impartial jury merely because one or more of the jurors trying the case are called as witnesses for the state as to a matter other than the commission of the crime itself. Williams v. State, 42 Ga. App. 225, 155 S.E. 511 (1930); Tumlin v. State, 88 Ga. App. 713, 77 S.E.2d 555 (1953).

Consideration of effect of pretrial publicity on impartiality of prospective jurors.

- When in a publicized murder case, in light of the possibility of prejudice, the trial court granted extensive individual voir dire of prospective jurors outside the presence of the others, and granted each of the defendant's motions to strike jurors for cause, leaving a panel of 50 prospective jurors where some prospective jurors admitted to a vague knowledge of the crimes, but none could recall details and each specifically stated an ability to weigh the evidence impartially, there is no prejudicial pretrial publicity which would outweigh the stated impartiality of the prospective jurors. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980).

In a murder trial, the two and one-half month period between the publicity and the trial, the low level of community bias as reflected in the total voir dire, and the admission into evidence of the defendant's confessions permit the court to discount the potential for prejudice admittedly present in the extrajudicial knowledge of the selected jurors in the case, and to find that the "totality of circumstances" surrounding the defendant's trial were not inherently prejudicial to the defendant's right to an impartial jury. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

After one prospective juror made a comment that the defendant killed redheads and that the juror was later excused, the trial court did not violate the defendant's right to an impartial jury under Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6 in refusing to excuse other prospective jurors. 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).

Trial court did not deprive the defendant of a fair and impartial jury pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6 in refusing to transfer venue of the murder case due to pretrial publicity; many of the prospective jurors were unaware of the publicity surrounding the crimes due to the 14-year gap between the crimes and trial, and no remaining venire persons expressed a fixed opinion regarding the defendant's guilt based upon exposure to media coverage. Denny v. State, 281 Ga. 114, 636 S.E.2d 500 (2006).

Corroboration for the court's belief that pretrial publicity was not inherently prejudicial could be found in the percentage of prospective jurors excused for partiality regarding the accused's guilt. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

When only 4 percent of the prospective jurors were excused for partiality regarding the defendant's guilt, the pretrial publicity surrounding the defendant's case did not create a community bias inherently prejudicial to the appellant's right to an impartial jury. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

New trial granted if jury acts from passion or prejudice.

- It is a general rule that if the jury acts from passion or prejudice against the accused in rendering their verdict against the accused, a new trial will be granted. Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602 (1937).

New trial wheren incompetent juror renders verdict.

- When a juror is incompetent, and renders a verdict, a new trial will be granted. Doyal v. State, 73 Ga. 72 (1884).

Press should refrain from activities which interfere with trial by impartial jury.

- A responsible press, appreciating as it must the great power of the press in a democratic society, should refrain from publishing and distributing news articles which, in the normal course of events would, or which it could reasonably anticipate would, interfere with the trial of a criminal case by an impartial jury; and to do so may subject it to punishment for contempt of court. Atlanta Newspapers, Inc. v. State, 216 Ga. 399, 116 S.E.2d 580 (1960).

The press should be given the widest latitude possible in the exercise of its freedom that is consonant with the orderly administration of justice, trial by a fair and impartial jury, and the freedom and independence of the courts in the exercise of their constitutional rights and duties. Atlanta Newspapers, Inc. v. State, 216 Ga. 399, 116 S.E.2d 580 (1960).

Disqualification of jurors with reservations about capital punishment.

- When jurors were disqualified in a murder and rape proceeding because of their reservations about capital punishment, the jurors were properly excused for cause, and the defendant was not deprived of the defendant's right to a jury selected from a representative cross section of the community. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980).

The right of an accused to a trial by an impartial jury, guaranteed by the state and federal Constitutions, means the right to a jury impartial as between the state and the accused on the question of the guilt or innocence of the accused. The crime of rape in this state may be punished by death, and a person accused of such crime has no constitutional right to have jurors trying the case who have conscientious scruples against the infliction of a punishment prescribed by the law. Massey v. State, 222 Ga. 143, 149 S.E.2d 118, appeal dismissed, 385 U.S. 36, 87 S. Ct. 241, 17 L. Ed. 2d 36 (1966).

Trial court's disqualification of a juror for cause based upon the juror's opposition to the imposition of the death penalty was not an abuse of discretion as: (1) the juror initially indicated that the juror was open to considering the death penalty as a sentencing option, but almost immediately into voir dire the juror vacillated and repeatedly stated that the juror did not know whether the juror could vote for the death penalty; (2) after extensive questioning by the trial court, the juror stated that the death penalty was against the juror's nature and indicated that the juror did not think the juror could vote for it, regardless of the circumstances; and (3) in finding the juror unqualified, the trial court relied in large part on the juror's demeanor, noting the juror's "body language" and the fact that, although the juror had indicated a couple of times that the juror might consider the death penalty, the juror "seemed to struggle with it." Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

"Death-qualified" jury procedure does not violate constitutional right to jury trial. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978).

When the defendant received a sentence of life without parole, not a death sentence, the defendant could not complain of the death-penalty qualification of the jurors; moreover, the death penalty qualification of prospective jurors was clearly authorized. Stokes v. State, 281 Ga. 825, 642 S.E.2d 82 (2007).

Circumstances under which examination by court may be cause for new trial.

- The trial judge has the right to propound a question or a series of questions to any witness, for the purpose of developing fully the truth of the case; and the extent to which the examination conducted by the court shall go is a matter within the judge's discretion; and a lengthy examination by the court of a witness called by either party will not be cause for a new trial even though some of the questions propounded by the court were leading in character, unless the court, during the examination of the witness by the court, expresses or intimates an opinion on the facts of the case, or as to what has or has not been proved on the examination takes such course as to become argumentative in character. Beavers v. State, 132 Ga. App. 94, 207 S.E.2d 550 (1974).

Restriction of improper voir dire.

- The trial court did not violate Uniform Superior Court Rule 10.1, O.C.G.A. § 15-12-133, the Sixth and Fourteenth Amendments, or Ga. Const. 1983, Art. I, Sec. I, Paras. I and XI, by restricting improper voir dire examination of prospective jurors concerning racial bias, pretrial publicity, and self defense. Walker v. State, 258 Ga. 443, 370 S.E.2d 149 (1988).

Out-of-court communication.

- Presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown was overcome since the court conducted a thorough hearing regarding an out-of-court communication at which both the defendant and the state had ample opportunity to question the witness and the offending juror. Cleveland v. State, 192 Ga. App. 659, 386 S.E.2d 169 (1989).

Judge's comment on jurors' notes did not violate right to impartial jury.

- Trial court did not express an opinion in violation of O.C.G.A. § 17-8-57 or of an inmate's rights to confrontation or a fair and impartial jury when the court explained to those in the courtroom during jury deliberations in the inmate's trial on drug and weapons offenses that it had received two notes from the jury describing a communication received by a juror that offered the juror a bribe in exchange for changing the juror's vote to not guilty; the trial court's comment did not suggest that the inmate had directed the bribery attempt because it merely reviewed the jurors' notes and did not go beyond them, and it added nothing to that which the jurors already knew. Greer v. Thompson, 281 Ga. 419, 637 S.E.2d 698 (2006).

Prejudicial misconduct of counsel may warrant granting mistrial.

- The misconduct of counsel may be such that its effect cannot be overcome, and misconduct so prejudicial that the verdict of the jury must have been influenced thereby is not cured by an admonition to the jury, or by sustaining an objection thereto, or by rebuke or admonition of counsel, or by withdrawal by counsel; but the court should grant a mistrial. Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602 (1937).

Handling of misconduct of counsel by court.

- When the conduct of the attorney warrants a reprimand, a mere placid direction by the court will not suffice. Whenever necessary, the court may and should admonish the jury to disregard improper arguments, whether requested to do so or not, but especially when properly requested so to do; and unless the misconduct is so prejudicial that its injurious effect cannot be eradicated, the error in counsel's misconduct is cured by an admonition to disregard the impropriety by cautioning the jury to decide the case on the evidence and not on counsel's statements, and that statements of counsel are not to be regarded as evidence. Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602 (1937).

If the solicitor general (now district attorney) in the address to the jury uses highly improper language not authorized by the evidence or any fair deduction therefrom, and counsel for the accused objects thereto and moves that the court declare a mistrial, which the court refuses, a new trial will be granted in the interest of justice, which requires a fair trial. Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602 (1937).

While the language of the court need not be a direct admonishment, a mere perfunctory statement not to consider has been held not sufficient, and a general instruction to try the case free from bias and prejudice and wholly on the evidence is not tantamount to directing the jury to disregard counsel's improper remarks. Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602 (1937).

The court must so admonish the jury as to remove the prejudice resulting from the prosecutor's misconduct, and in some cases in admonishment to the jury to disregard the remarks of counsel will not correct their effect. The misconduct may be such that the sustaining of objections thereto is not sufficient; and when the argument is very prejudicial, in addition to sustaining an objection, the judge should reprimand counsel, require the improper remarks to be withdrawn, and instruct the jury to disregard the remarks, in order to alleviate the harmful effect; and when the court has sustained an objection to remarks, it is the duty of counsel to desist from further argument of the same character. Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602 (1937).

Trial court did not err in denying the defendant's motion for mistrial following the state's reference to prison in closing arguments, as the defendant's right to a fair trial under Ga. Const. 1983, Art. I, Sec. I, Para. XI was not violated; even assuming that the prosecutor's statement that the defendant did not want to go to prison was improper, the trial court's prompt curative instruction, requesting the jury to disregard any reference to prison and to not be concerned with punishment, was sufficient to prevent any possible prejudicial effect. Carswell-Danso v. State, 281 Ga. App. 576, 636 S.E.2d 735 (2006).

A defendant's conviction for felony murder and other crimes stemming from an incident in which the defendant drove a car into a crowd, hitting and killing the victim, was reversed on appeal since the trial court abused the trial court's discretion by failing to strike a juror for cause since that juror expressed a distinct bias against the defendant, with the juror stating that the juror had pretty much formed an opinion already, that it seemed as if the defendant was guilty of the crime, and that it would be the defense's job to prove that the defendant was not involved. Maxwell v. State, 282 Ga. 22, 644 S.E.2d 822 (2007).

Remark did not require entire panel to be excused.

- Even if trial counsel was ineffective for failing to challenge the jury array on the basis that the array was tainted by the comments of a juror who was excused after stating that the juror thought the defendant was "guilty in 2003," when the crimes occurred, there was no prejudice because the juror's opinion was based solely on media reports, not on any personal knowledge of the defendant; when a prospective juror's comments did not link a defendant with criminal activity, or characterize the defendant as a criminal, the entire jury panel did not have to be excused. Edwards v. State, 282 Ga. 259, 646 S.E.2d 663 (2007).

Refusal to declare mistrial on account of argument of assistant solicitor general (now assistant district attorney) was not denial of constitutional rights of the accused. The argument of the assistant solicitor general (now assistant district attorney), when considered in connection with the statement of the judge, was not such as to affect the impartiality of the jury; and that construction necessarily negatives any violation of this constitutional right. Hicks v. State, 196 Ga. 671, 27 S.E.2d 307 (1943).

When in the trial of an accused for rape, the assistant solicitor general (now assistant district attorney) in a concluding argument made the statement, "anything less than the death penalty would be a mockery," and when counsel for accused promptly stated, "We object to that, and ask for a mistrial in this case," and when the court denied the motion by stating, "I will strike the word 'mockery' and tell the jury to put it out of their minds," the court did not err in refusing to declare a mistrial, and there was no violation of the rights of the accused under the due process clause of the Constitution of this state, or under the provisions that the accused be given a trial "by an impartial jury." Hicks v. State, 196 Ga. 671, 27 S.E.2d 307 (1943).

State witness serving as bailiff during defendant's trial.

- Defendant's trial counsel was ineffective for failing to object to a county sheriff serving as a bailiff during the defendant's trial on charges of, inter alia, arson because the sheriff was a key witness for the state. Even if the sheriff never directly discussed the case with the jurors, the defendant was prejudiced as the sheriff continually associated with the jurors during half the trial and, thus, denied the defendant the right to a fair trial by an impartial jury. Bass v. State, 285 Ga. 89, 674 S.E.2d 255 (2009).

Statute regarded as aid and implementation of constitutional right.

- Since the right of a speedy trial has become a guaranty under the state Constitution, O.C.G.A. § 17-7-170 is to be regarded as in aid and implementation of the state constitutional right and to secure to a defendant in a criminal case the defendant's right thereunder. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

Defendant's motion to dismiss the indictment on constitutional speedy trial grounds was improperly granted as the trial court erred when the court concluded that there was no evidence of efforts to extradite the defendant and in failing to assign any weight to the trial delay caused by the defendant's actions in challenging extradition because, in the motion to dismiss, the defendant specifically acknowledged that the United States government executed an extradition request to Finland; the defendant's admission was binding for purposes of resolving the defendant's motion to dismiss; and, had the trial court correctly considered the evidence before the court, it was possible that the court would have weighed the reason for delay factor differently. State v. Wood, 338 Ga. App. 181, 790 S.E.2d 84 (2016).

Purpose of demand statute is to secure rights.

- Since the purpose of the demand statute, former Code 1933, § 27-1901 (see now O.C.G.A. § 17-7-170) is to secure to defendants in criminal cases their rights guaranteed by this paragraph to a speedy and public trial, the courts should seek to uphold rather than whittle away by judicial construction this and other provisions of the Bill of Rights, which secure the guarantees of freedom upon which this country is founded. Rider v. State, 103 Ga. App. 184, 118 S.E.2d 749 (1961).

Dead docketing a case.

- Placing a case upon the dead docket constitutes neither a dismissal nor a termination of the prosecution in the accused's favor. Consequently, the fact that a case is placed on the dead docket does not affect the constitutional right to a speedy trial. Hayes v. State, 298 Ga. App. 338, 680 S.E.2d 182 (2009).

Differing terms of court.

- O.C.G.A. §§ 15-6-3(15.1) and17-7-171 did not combine to deprive a criminal defendant of equal protection of the law by permitting the county of the defendant's adjudication to operate with only two terms of court, while other similar-sized counties operate with more terms of court. Although defendant may have had to wait months longer for the defendant's trial than similarly situated defendants in other counties, the presumptive validity of the statutes stood. Henry v. State, 263 Ga. 417, 434 S.E.2d 469 (1993).

Right becomes operative when one becomes accused and prosecution commences either by formal accusation or arrest. Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979).

Rights effective when charged.

- The constitutional provisions requiring and guaranteeing "speedy trial" generally become operative when the accused is charged, i.e., when the prosecution commences. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975).

Obligation of courts and prosecution to proceed with reasonable dispatch serves threefold purpose.

- The right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. The guaranty has been held to serve a threefold purpose: it protects the accused, if held in jail to await trial, against prolonged imprisonment; it relieves the accused of the anxiety and public suspicion attendant upon an untried accusation of crime; and, like statutes of limitation, it prevents the accused from being exposed to the hazard of a trial after the lapse of so great a time that the means of proving the accused's innocence may have been lost. It also applies to a person who is at large on bail, since, in addition to protecting an accused against prolonged incarceration, the right also serves other purposes which are applicable whether the defendant is on bail or not. Blevins v. State, 113 Ga. App. 702, 149 S.E.2d 423 (1966).

The interests of an accused to be protected by the right to a speedy trial include to: (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of the accused; and (3) limit the possibility that the defense will be impaired. Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979).

Four factors are relevant to consideration of whether denial of speedy trial assumes due process proportions: the length of delay, the reason for the delay, the prejudice to the defendant, and waiver by the defendant of the defendant's right to a speedy trial. Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972); Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101 (1971); Hughes v. State, 228 Ga. 593, 187 S.E.2d 135 (1972); Mays v. State, 229 Ga. 609, 193 S.E.2d 825 (1972); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976); Powell v. State, 143 Ga. App. 684, 239 S.E.2d 560 (1977); Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 (1979); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979); Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808 (1980); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Violation of constitutional speedy trial right was not denied when the trial court properly analyzed the defendant's claim under a four part test: (1) the length of delay was six months; (2) the initial delay was caused by the defendant's change in counsel and motions for continuance, so the delay was not attributable to the state; (3) the defendant withdrew the defendant's initial statutory demand for a speedy trial and did not assert one again until two months before the defendant was tried; and (4) there was no prejudice when the defendant did not testify or otherwise produce any specific evidence of oppressive pre-trial incarceration and there was no evidence that the defense was impaired by the delay in bringing the defendant to trial. Hudson v. State, 277 Ga. 581, 591 S.E.2d 807, cert. denied, 543 U.S. 934, 125 S. Ct. 317, 160 L. Ed. 2d 238 (2004).

Four factors exist to be considered by a court in determining whether an accused's constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant. Defendant was not prejudiced by the delay in holding defendant's trial since: (1) the delay was caused by defendant's own failure to appear at defendant's first trial that then required a bench warrant for defendant's arrest to be issued; and (2) the delay did not prejudice defendant's ability to find witnesses to support defendant's alibi defense because a witness who was unavailable would not have been able to testify in support of that defense and defendant had ample time to tell defendant's family members to keep notes of defendant's whereabouts before defendant decided to not appear for defendant's first trial. Mayfield v. State, 264 Ga. App. 551, 593 S.E.2d 851 (2003).

After defendant, who was initially indicted for the burglary of victims who died when their house burned down admitted involvement in their deaths, resulting in a new indictment for murder, arson, and other offenses, as well as the original burglary, while a 62-month delay after the new indictment was presumptively prejudicial, as was the delay of another year after the original indictment, the lack of the state's deliberate act causing the delay, defendant's withdrawal of defendant's speedy trial demand, and the lack of a showing that defendant's defense was impaired by the delay indicated that it was not error to deny defendant's motion to dismiss the indictments. Williams v. State, 279 Ga. 106, 610 S.E.2d 32 (2005).

While a majority of the delay in bringing the defendant to trial was attributable to the state, and the defendant did not assert any right to a speedy trial until approximately 45 months after the date of arrest, after balancing all four factors set out in Barker v. Wingo, any delay in bringing the defendant to trial did not violate the right to a speedy trial, no actual anxiety or concern on the defendant's part was shown, and the testimony that two alleged material defense witnesses would have presented would have either been cumulative or not material. Ingram v. State, 280 Ga. App. 467, 634 S.E.2d 430 (2006), cert. denied, 2007 Ga. LEXIS 868 (Ga. 2007).

Given the fact that the defendant waited until only a few weeks before trial to assert a constitutional speedy trial violation, and in light of the failure to show any prejudice by the delay, the trial court acted within the court's discretion in denying the defendant's speedy trial claim; moreover, such was particularly true when there was no evidence that the delay was the result of a deliberate attempt by the state to hamper the defense. Parker v. State, 283 Ga. App. 714, 642 S.E.2d 111, cert. denied, 552 U.S. 995, 128 S. Ct. 496, 169 L. Ed. 2d 347 (2007).

Upon the appellate court's analysis of the four Barker v. Wingo factors, given the negative weight of one of two factors against the state, specifically, the reason for the delay, and the defendant's failure to show prejudice and timely assertion of a speedy trial right, no abuse of discretion resulted from the trial court's denial of a motion to dismiss the indictments filed against the defendant on speedy trial grounds. Simmons v. State, 290 Ga. App. 315, 659 S.E.2d 721 (2008).

Applying four-part Barker speedy trial test: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right to a speedy trial; and (4) prejudice to the defendant, the appeals court decided that defendant's U.S. Const., amend. 6, Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), and O.C.G.A. § 17-7-171, speedy trial rights were not violated in the defendant's trial for driving under the influence - inter alia deciding that the three-year delay from arrest to trial was presumptively prejudicial, that the loss of DUI blood test result evidence was an equal loss to the defendant and the state, and that the defendant's delay in asserting the right was an indication that the defendant was not anxious or stressed. Allen v. State, 268 Ga. App. 161, 601 S.E.2d 485 (2004).

Defendant was not denied the right to a speedy trial as, assuming the 26-month delay between a first indictment and the trial was presumptively prejudicial: (1) the delay was caused by the defendant's motions for new counsel and to recuse the judge, and by declining an offer of an earlier trial; (2) the defendant did not assert the defendant's right to a speedy trial until 14 months after the indictment; and (3) the only alleged prejudice was the defendant's inability to obtain certain local phone records, and the delay in scheduling the trial did not encumber the defendant's ability to obtain those records. Smith v. State, 282 Ga. App. 339, 638 S.E.2d 791 (2006).

While the trial court was authorized to conclude that the "lead officer" in the prosecution against the defendant was a material and necessary witness who was unavailable for 14 months while the defendant's case was pending, and thus a continuance during that period was proper under O.C.G.A. § 17-8-31, despite the fact that no explanation was given for the remainder of the delay, given that the defendant failed to prove any of the other Barker v. Wingo factors in determining whether a speedy trial violation occurred, the defendant's motion to dismiss the indictment on speedy trial grounds was properly denied. Bell v. State, 287 Ga. App. 300, 651 S.E.2d 218 (2007), cert. denied, No. S08C0031, 2007 Ga. LEXIS 811 (Ga. 2007).

The trial court properly rejected a defendant's constitutional speedy trial claim; although the 18-month delay between a remittitur and the filing of the defendant's second motion for discharge and acquittal was presumptively prejudicial and was apparently caused by failure to schedule the case or by an overcrowded docket, the defendant had not asserted the constitutional speedy trial right until 18 months after remittitur and had not shown that witnesses were unavailable. Oni v. State, 285 Ga. App. 342, 646 S.E.2d 312 (2007).

The trial court did not abuse the court's discretion in granting the defendants' motions to dismiss the charges filed against them because the court was authorized to find that, as the result of the state's negligence, both the defendants were subjected to an extraordinarily long delay in being brought to trial, that they were not dilatory in asserting their right to a speedy trial, and that, as a result of the delay, their ability to defend against the belated murder charge was prejudiced. State v. White, 282 Ga. 859, 655 S.E.2d 575 (2008).

Trial court erred by denying the defendant's motion to dismiss the indictment for pre-indictment delay and granting the defendant's motion to dismiss for delay in prosecution because it failed to properly weigh the case law factors and improperly analyzed the defendant's claim for pre-indictment delay as a due process violation. State v. Curry, 317 Ga. App. 611, 732 S.E.2d 459 (2012).

Error in applying Barker test.

- Trial court erred in granting the defendant's motion to dismiss the indictment on speedy trial grounds as the trial court miscalculated the length of the delay; improperly considered the state's pre-indictment, pre-arrest inaction for purposes of evaluating the reasons for the delay; failed to weigh the defendant's assertions of the right to speedy trial; and erred in finding that the defense was substantially impaired by the death of the defendant's sister. State v. Gay, 321 Ga. App. 92, 741 S.E.2d 217 (2013).

Same standards for deciding claims of denial of speedy trial are used whether the claim is based on U.S. Const., amend. 6 or this paragraph. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 (1979); Redd v. State, 261 Ga. 300, 404 S.E.2d 264 (1991), cert. denied, 505 U.S. 1218, 112 S. Ct. 3025, 120 L. Ed. 2d 897 (1992).

Constitutional speedy trial questions involve issues of fact that should be resolved by the court having jurisdiction of the criminal prosecution. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808 (1980).

Delay factors weighed against government.

- While a deliberate attempt by the prosecution to delay the trial in order to hamper the defense is weighed heavily against the government, an overcrowded docket is considered to be a more neutral reason although it cannot be overlooked. Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

Trial judge's delay in ruling on new trial motion after conviction of accused was not denial of constitutional right to a speedy trial when the delay did not deprive the accused of the opportunity to serve the sentence concurrently with another sentence imposed in a separate trial. Herring v. Ault, 230 Ga. 398, 197 S.E.2d 354 (1973).

Delay in transmitting the record of appeal after defendant's conviction was not a violation of the defendant's federal and state constitutional rights to a speedy trial. Crosby v. State, 188 Ga. App. 191, 372 S.E.2d 471 (1988).

Finding of speedy trial not supported by evidence.

- In determining a constitutional speedy trial claim, the trial court failed to account for two years of the four-year delay, and its finding that the rest of the delay was justified by an investigator's military service was not supported by sufficient evidence as it was not clear when the investigator returned; thus, remand was required. Fischer v. State, 286 Ga. App. 180, 651 S.E.2d 432 (2007).

Denial of speedy trial may work to defendant's advantage, and therefore there is no per se prejudice to a defendant from delay, nor is there any specific number of days or months within which a defendant must be tried. Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976).

Delay alone is not enough to entitle one to discharge for denial of speedy trial. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 (1979).

Court did not err in denying motion to dismiss on speedy trial grounds because, although the initial delay was attributable to the state, after the indictment was filed the state moved with reasonable promptness, defendant filed the motion only weeks before the trial date, and defendant's anxiety about the charges was insufficient to show prejudice. Chappell v. State, 272 Ga. App. 1, 611 S.E.2d 157 (2005).

As defendant's blood-alcohol content registered over .3, well over the legal limit, the trial court could have concluded that a witness's live testimony would not have greatly assisted the defense, and that the witness's absence due to delay was not prejudicial; the trial court did not abuse its discretion in denying defendant's motion to dismiss on speedy trial grounds. Mesaros v. State, 283 Ga. App. 337, 641 S.E.2d 559 (2007).

A trial court did not err by denying a defendant's motion to dismiss based on an alleged violation of the defendant's constitutional right to a speedy trial because the various appeals by the defendant and the state constituted valid reasons for significant periods of the delay in the trial, part of the delay was inherent since the case involved a death penalty prosecution, there was no evidence of a deliberate attempt by the state to delay the trial in order to hamper the defense, and the trial court was authorized to conclude that there had not been any impairment to the defense. Griffin v. State, 282 Ga. 215, 647 S.E.2d 36 (2007), overruled on other grounds, Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008).

Trial court properly denied the defendant's motion to dismiss the indictment against the defendant because the defendant never filed an effective statutory demand for a speedy trial and, as to the defendant's constitutional right to a speedy trial, the 68-month delay was presumed prejudicial, but the defendant prolonged the proceedings due to the defendant's own issues with retaining counsel, including the defendant's original counsel obtaining various leaves of absences due to illness and the defendant's unsuccessful efforts to retain other private counsel. Henderson v. State, 290 Ga. App. 427, 662 S.E.2d 652 (2008).

With regard to a defendant being indicted for malice murder and other crimes, the trial court did not abuse the court's discretion by denying the defendant's motion to dismiss the indictment on speedy trial grounds as, although the delay of two years, two months, and 23 days in bringing the defendant to trial was presumptively prejudicial, the record supported the trial court's factual conclusion that the defendant failed to establish oppressive pretrial incarceration or anxiety and concern beyond that which necessarily attended confinement in a penal institution, and the defendant failed to present any specific evidence that the defendant's ability to defend had been impaired. Ruffin v. State, 284 Ga. 52, 663 S.E.2d 189 (2008), cert. denied, 555 U.S. 1181, 129 S. Ct. 1330, 173 L. Ed. 2d 603 (2009).

That a defendant never asserted a statutory right to a speedy trial, agreed to some continuances, never objected to others, and never acted on the trial court's invitation to file an out-of-time speedy trial demand, established that the defendant did not timely and vigilantly assert the defendant's constitutional right to a speedy trial. Therefore, the defendant's motion to dismiss on speedy trial grounds was properly denied. Bowling v. State, 285 Ga. 43, 673 S.E.2d 194 (2009).

Trial court did not abuse the court's discretion in denying a defendant's motion to dismiss on the basis that the state violated the defendant's right to a speedy trial pursuant to the Sixth Amendment to the Constitution of the United States and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) because although the 54-month delay between the defendant's arrest and the filing of the defendant's motion was presumptively prejudicial, and the state offered no explanation for the delay, the defendant did not file a request for speedy trial pursuant to O.C.G.A. § 17-7-171, the defendant did not assert the defendant's constitutional right to a speedy trial for the 54 months between the defendant's arrest and the filing of the defendant's motion to dismiss, and the trial court specifically found that the defendant failed to establish prejudice. Falagian v. State, 300 Ga. App. 187, 684 S.E.2d 340 (2009), overruled on other grounds, 293 Ga. 282 (2013).

Trial court did not abuse the court's discretion in denying the defendant's motion to dismiss an indictment charging the defendant with armed robbery, O.C.G.A. § 16-8-41, for a violation of the defendant's right to due process because the defendant failed to show that the defense was prejudiced by the six-year delay between the commission of the crime and the defendant's arrest or that the state deliberately delayed the arrest to obtain a tactical advantage; the defendant was arrested and indicted for armed robbery, a noncapital felony, within the applicable seven-year statute of limitation, O.C.G.A. §§ 16-8-41(a) and17-3-1(c), and the mere existence of the possibility that the latent prints could have established "the real perpetrator" if the prints had matched the prints of another offender in the government's database did not establish actual prejudice. Billingslea v. State, 311 Ga. App. 490, 716 S.E.2d 555 (2011).

Defendant must show delay was purposeful, oppressive, or prejudicial.

- To sustain a prisoner's contention that there was a violation of the prisoner's constitutional right to a speedy trial, not only must delay be shown, but that such delay was purposeful, oppressive, or prejudicial. Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101 (1971); Hughes v. State, 228 Ga. 593, 187 S.E.2d 135 (1972).

Trial court erroneously placed upon defendants burden of proving actual prejudice.

- Judgment denying the defendants' pleas in bar, which were urged on the basis that the defendants were denied the right to a speedy trial under the Sixth Amendment of the United States Constitution and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), was vacated because the trial court erroneously placed upon the defendants the burden of proving actual prejudice to their legal defense; the extraordinary six-year delay between the defendants' arrest and the pleas in bar raised the presumption of actual prejudice, and the defendants' failure to make a particularized showing of their decreased ability to present a defense at trial could not be weighed heavily against the defendants. Smereczynsky v. State, 314 Ga. App. 73, 722 S.E.2d 892 (2012).

Speedy trial rights violated.

- Trial court erred in denying defendant's motion to dismiss which alleged a speedy trial violation, as the delay in bringing defendant to trial was prejudicial, especially when, after an assertion of the right, a trial did not immediately ensue, but an additional seven months passed before a ruling on the claim, and in the interim, an alleged material defense witness died. Hardeman v. State, 280 Ga. App. 168, 633 S.E.2d 595 (2006).

Renewed motion for discharge and acquittal by the defendant was properly granted upon a determination that the defendant's constitutional speedy trial rights were violated under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI, as the delay of almost four years in bringing the defendant to trial was presumptively prejudicial, and the remaining Barker-Doggett factors weighed in the defendant's favor; only a small portion of the delay was attributable to the defendant and the defendant timely asserted the right to a speedy trial. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802 (2009).

Defendant was denied the constitutional right to a speedy trial and to due process based on the state's intentional act of trading discovery responses for a speedy trial right, and the resulting prejudice from the disappearance of a material witness. The trial court therefore abused the court's discretion in denying the defendant's motion for discharge and acquittal. Ditman v. State, 301 Ga. App. 187, 687 S.E.2d 155 (2009), cert. denied, No. S10C0539, 2010 Ga. LEXIS 243 (Ga. 2010).

Indictment was dismissed because the defendant's constitutional right to a speedy trial under the Sixth Amendment was violated as 32 months elapsed from the time of the defendant's arrest until the trial court's order denying the defendant's motion to dismiss the indictment. Furthermore, the balancing test for a speedy trial violation showed that the length of the delay, the blame for the delay, and the prejudice to the defendant weighed against the State of Georgia, even though the defendant's failure to assert the defendant's right to a speedy trial weighed against the defendant. Butler v. State, 309 Ga. App. 86, 709 S.E.2d 293 (2011).

Denial of the defendant's motion to dismiss the defendant's indictment for violation of the defendant's constitutional right to a speedy trial was improper under Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) because the trial court clearly erred in reaching several material factual findings of three of the four Barker factors: the cause of the delay, the assertion of the right to speedy trial, and prejudice. Davis v. State, 308 Ga. App. 843, 709 S.E.2d 343 (2011).

Dismissal of the indictment on speedy trial grounds was supported by the fact that, while a small portion of the delay was, in fact, attributable to the defendant, at least seven and a half years of the nine year delay was attributable to the state, and the defendant timely asserted the right after finally obtaining counsel and receiving discovery from the state. State v. Brown, 315 Ga. App. 544, 726 S.E.2d 500 (2012).

Speedy trial rights were violated when the defendant was brought to trial more than 53 months after being indicted, an uncommonly long delay that weighed against the state. The delay occasioned by the prosecuting attorney's announcement that the state intended to seek the death penalty, made on the day the case was set for trial for the tenth time, weighed more heavily against the state; while the defendant did not assert the right to a speedy trial until almost four years after the indictment, the defendant's late assertion was somewhat mitigated by the defendant's repeated insistence that the state comply with the state's discovery obligations; and the defendant suffered actual prejudice as a result of the defendant's inability to show the extent to which evidence tampering occurred, due to an officer's inability to recall important details of the investigation. State v. Buckner, 292 Ga. 390, 738 S.E.2d 65 (2013).

Defendant's right to a speedy trial was violated as the defendant was not brought to trial for three years after being arrested, the delay was due to the state's deliberate choice not to request a production order but to allow the defendant to serve a sentence in another matter and then prosecute the defendant thereafter for the driving under the influence charge, and the defendant was prejudiced by the delay. State v. Johnson, 325 Ga. App. 128, 749 S.E.2d 828 (2013).

Trial court did not err in determining that the defendant's right to a speedy trial was violated as the eight-year passage of time before the case was restored to the trial calendar raised a presumption of prejudice, most of the delay was attributable to the state, the defendant's delay in asserting the right was mitigated by the fact that the defendant had no counsel and a limited education, and the delay impaired the ability to put on a defense. State v. Alexander, 295 Ga. 154, 758 S.E.2d 289 (2014).

Defendant's motion for discharge and acquittal for a violation of the defendant's constitutional right to a speedy trial was properly granted because the two-and-a-half year delay from the date of indictment was presumptively prejudicial; although the pretrial delay was partially attributable to the defendant, in light of the defendant's efforts to secure a better plea agreement and defense attorney's unavailability during some of the plea negotiations, a large part of the delay was attributable to the government as the state offered no explanation for the delay between the indictment or the arraignment; and the death of a potentially critical witness prejudiced the defendant as the deceased witness took sole responsibility for the crime. State v. Bonawitz, 339 Ga. App. 299, 793 S.E.2d 191 (2016).

Speedy trial rights not violated.

- Three defendants failed to carry the burden of establishing that a 14-month delay in bringing defendants to trial was presumptively prejudicial and, therefore, violated defendants' right to a speedy trial, because the peculiar circumstances of the case authorized a finding that the case was being prosecuted with the promptness customary for a complex drug trafficking case involving multiple defendants. Defendants failed to show that such a delay was presumptively prejudicial under the circumstances of the case: (1) the case was more akin to a complex conspiracy charge, as opposed to an ordinary street crime, since the indictment charged 11 people with the serious offense of trafficking in cocaine; (2) defendants acknowledged in the trial court and in appellate briefs that there was a massive amount of evidence for discovery, including thousands of documents, thousands of telephone records, and hundreds of hours of taped conversations; and (3) there was a also a federal investigation of the drug operation going on at the same time as the state investigation. Lawrence v. State, 289 Ga. App. 698, 658 S.E.2d 144 (2008), cert. denied, No. S08C1086, No. S08C1084, 2008 Ga. LEXIS 467, 486, 512 (Ga. 2008).

There was no violation of the defendant's constitutional speedy trial rights under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), as a delay in bringing defendant to trial due to a backlog in the court system was not shown to have caused any prejudice to the defendant, and the defendant failed to timely assert the right to a speedy trial. Thomas v. State, 296 Ga. App. 231, 674 S.E.2d 96 (2009).

Defendant's constitutional speedy trial right was not violated by delays ranging from two to five years. The primary reason for the delay was the defendant's cooperation in another inmate's case, to which the defendant agreed; the defendant waited several years to assert the speedy trial right; and there was no prejudice to the defendant, who was already serving a lengthy federal prison sentence. Marshall v. State, 286 Ga. 446, 689 S.E.2d 283 (2010).

Although the defendant contended the trial court should have dismissed the charges against the defendant because the defendant was denied the defendant's constitutional right to a speedy trial under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI the record revealed no basis for granting such a motion because the record showed that any delay in bringing the case to trial was primarily attributable to the defendant and that any resulting prejudice worked to the defendant's benefit, factors which weighed against the defendant and defeated any contention that the defendant was deprived of the defendant's constitutional right to a speedy trial. Zeger v. State, 306 Ga. App. 474, 702 S.E.2d 474 (2010).

As two defendants' speedy trial time from the date of the defendants' mistrial through to the date the defendants' second dismissal motion was denied was only a little over three months, there was no presumption of prejudice and the defendants' speedy trial rights were not violated under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a). Brewington v. State, 288 Ga. 520, 705 S.E.2d 660 (2011).

Trial court did not abuse the court's discretion in finding that the defendant's constitutional right to a speedy trial was not violated and in denying the defendant's plea in bar and motion to dismiss the indictment because the defendant failed to show that the delay in bringing the case to trial was purposeful on the part of the state or that the defendant was harmed by the loss of evidence, and since there was no evidence that the state deliberately tried to hamper the defense with delaying the trial, the state's negligence in not bringing the case to trial sooner was considered "relatively benign"; the defendant, who had the benefit of counsel since shortly after the arrest, did not file a statutory demand for speedy trial pursuant to O.C.G.A. § 17-7-170 and did not assert the constitutional right to a speedy trial until 38 months after the arrest, and the defendant failed to present evidence of any significant anxiety or concern beyond that normally felt by someone facing criminal charges. Weems v. State, 310 Ga. App. 590, 714 S.E.2d 119 (2011).

Trial court did not abuse the court's discretion when the court denied the defendant's claim that the defendant's constitutional right to a speedy trial was violated because neither the defendant nor the defendant's initial attorney made themselves aware of the actual status of the case between 1998 and 2005, and the defendant failed to keep the defendant's address up to date with the trial court such that the court was unable to send the notice for the arraignment to the defendant's home address; the defendant never made a speedy trial demand during the nine years that passed between the arrest and trial, the defendant was not subjected to oppressive pre-trial incarceration and did not suffer any unusual anxiety or concern because the defendant was not actually incarcerated for most of the nine years in question, and the defendant also was not prejudiced by lost evidence. Rafi v. State, 289 Ga. 716, 715 S.E.2d 113 (2011).

While the superior court erred in failing to analyze separately whether the pretrial delay was uncommonly long, and it should have weighed that factor against the state, the superior court acted within the court's discretion in finding that the reasons for the delay weighed in favor of the state, that the defendant's long delay in asserting the defendant's speedy trial right weighed heavily against the defendant, and that the defendant failed to show any prejudice resulting from the delay and in weighing this factor against the defendant. Sechler v. State, 316 Ga. App. 675, 730 S.E.2d 142 (2012).

Trial court did not abuse the court's discretion in concluding that the speedy trial factors weighed against the defendant and in denying the defendant's motion to dismiss based on constitutional speedy trial grounds because, although the 16-month delay was presumptively prejudicial, and the cause of delay factor weighed in the defendant's favor, the defendant had no articulable reason for the 16-month delay in asserting the defendant's right to a speedy trial; and the defendant presented no evidence that the defendant suffered anxiety or concern, and the defendant made no showing that the delay affected the defendant's ability to present a defense. McDougler v. State, 339 Ga. App. 225, 793 S.E.2d 511 (2016).

Defendant's motion for discharge and acquittal based on a violation of the defendant's constitutional right to a speedy trial was properly denied because, although the delay of approximately two and a half years was presumptively prejudicial, the reasons for delay factor weighed heavily against the defendant as the defendant filed numerous motions that were time-consuming and hampered the readiness of the case to move forward to trial; and the trial court weighed the prejudice to the defendant factor heavily against the defendant as the defendant failed to present specific evidence of how the delay impaired the defendant's ability to defend. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).

While the nearly six year delay in bringing the defendant to trial was presumptively prejudicial, the defendant's speedy trial rights were not violated because the defendant waited over four years to assert the right and failed to show prejudice due to the delay. Gray v. State, Ga. App. , S.E.2d (Aug. 8, 2018).

Prejudice from delay must be shown.

- Extraordinary delay without reason shown by the record is overcome when no prejudice is shown and the petitioner did not want a speedy trial (petitioner hoped petitioner would never be tried). Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975).

Defendant's plea in bar, wherein the defendant claimed denial of the defendant's constitutional right to a speedy trial, pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XI and U.S. Const., amend. 6, was properly denied as the trial court found that the delay of 11 months from the time that the accusation was filed until the parties were ready for trial was not excessive, some of the delay was attributable to the defendant, and the state had provided adequate explanations for its delay, and further, there was no prejudice shown. The court noted that although the state nol prossed the charges by accusation just hours before the defendant filed a demand for a speedy trial, such put the state on notice and, therefore, it was not significant that the defendant did not file another demand for a speedy trial after charges were filed by the grand jury indictment against the defendant. Shuler v. State, 263 Ga. App. 124, 587 S.E.2d 269 (2003).

Because the short delay attributable to the state did not have any demonstrable harmful effect on the defense against two murder charges and because defendant was dilatory in formally asserting the right to a speedy trial under the Sixth Amendment and the Georgia Constitution, the trial court correctly denied defendant's motion to dismiss the indictments. Scandrett v. State, 279 Ga. 632, 619 S.E.2d 603 (2005).

Convictions for armed robbery, aggravated assault with the intent to rob, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon were proper because the defendant's right to a speedy trial was not violated by the 20-month delay between the date the indictment was issued to the date of the defendant's actual trial as the delay was due to a higher priority of statutory speedy trial demands, so it was not a deliberate delay on the part of the state, and the defendant failed to show any prejudice from the delay. Herndon v. State, 277 Ga. App. 374, 626 S.E.2d 579 (2006).

After weighing the factors considered in determining whether the defendant's right to a speedy trial was violated, the appeals court agreed that denial of the defendant's plea in bar and demand for an acquittal alleging the violation was proper as the defendant failed to show that any prejudice resulted from the delay in bringing the case to trial. Lackey v. State, 283 Ga. App. 139, 640 S.E.2d 717 (2006).

Although the state was negligent in failing to bring the defendant to trial in a timely fashion, that consideration was outweighed by the facts that the defendant suffered little actual prejudice from the delay and no unduly oppressive pretrial incarceration, and the defendant waited a significant amount of time before asserting a speedy trial right; hence, the defendant's constitutional rights to a speedy trial were not violated. Christian v. State, 281 Ga. 474, 640 S.E.2d 21 (2007).

The trial court did not err in refusing to find a constitutional speedy trial right violation; although the 18-month delay between a remittitur and the defendant's motion for discharge and acquittal was presumptively prejudicial, and the delay was apparently caused by failure to schedule or by docket overcrowding, the delay in raising the claim weighed against the defendant, and the defendant had not shown that witnesses were unavailable or that the delay had prejudiced the defense. Oni v. State, 285 Ga. App. 342, 646 S.E.2d 312 (2007).

Defendant's right to a speedy trial was not violated as the trial court did not abuse the court's discretion in weighing the prejudice factor in the state's favor because, while the defendant's pre-trial incarceration was excessive, the defendant was also being held on other, unrelated charges during the same time period; and the defendant never testified about the defendant's speedy trial claim, never offered any evidence regarding the defendant's level of anxiety or concern, and never presented any evidence that the defense of the defendant had been impaired by the delay. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).

Prejudice not shown by lack of professional employment.

- Court of appeals erred in affirming the trial court's order granting the defendant's motion to dismiss an indictment on the ground that the state violated the defendant's constitutional right to a speedy trial because the trial court erred in finding that the defendant suffered undue anxiety since the charges made it impossible for the defendant to get a professional job; that finding implied that the defendant had held a professional job at some point, had the ability to obtain one, or lost one as a result of the defendant's arrest, but there was no evidence concerning that point. State v. Pickett, 288 Ga. 674, 706 S.E.2d 561 (2011).

Passage of nine months between the date a speeding charge was made and the date of trial was not alone sufficient to establish a violation of the right to a speedy trial since there was no evidence that the state delayed the trial to gain a tactical advantage, five months passed between the charge and the defendant's assertion of the defendant's right to a speedy trial and, since the defendant was not incarcerated, there was no prejudice to the defendant. Nairon v. State, 215 Ga. App. 76, 449 S.E.2d 634 (1994).

Two-year delay between the commission of the crime and the beginning of trial is not unconstitutional since some of the delay was due to the separate trials of the codefendants, the defendant did not assert the defendant's speedy-trial right until just before trial, and the only prejudice due to the delay was to the state. Harrison v. State, 257 Ga. 528, 361 S.E.2d 149 (1987), cert. denied, 485 U.S. 982, 108 S. Ct. 1281, 99 L. Ed. 2d 492 (1988).

A 21-month delay between the commission of the crime and the trial date was not unconstitutional when there was no evidence of an intent to delay the proceedings on behalf of the state, no recording of the defendant's wishes for trial date, and no assertion of prejudice by the delay. State v. Smith, 209 Ga. App. 404, 433 S.E.2d 599 (1993).

A 25-month delay.

- Presumption of prejudice raised by the state's 25-month delay in bringing defendant's case to trial was sufficiently rebutted as the loss of a witness did not prevent defendant from asserting an alibi defense and defendant was partially responsible for the loss of the witness as defendant waited 15 months after the indictment to assert defendant's speedy trial rights. Salahuddin v. State, 277 Ga. 561, 592 S.E.2d 410 (2004).

A 13-month delay.

- Defendant did not carry defendant's burden of establishing that a 13-month delay between defendant's arrest and trial was "presumptively prejudicial," and accordingly the trial court did not err when it denied defendant's contention that defendant had been denied the constitutional right to a speedy trial; defense counsel was removed by the trial court three days before trial was scheduled to commence, and several murder convictions appealed to the court had featured pre-trial delays of 12 to 16 months. Williams v. State, 282 Ga. 561, 651 S.E.2d 674 (2007).

Trial court properly denied a murder defendant's motion to dismiss an indictment on speedy trial grounds. Although the court found that the 13-month delay was caused by the state's negligence, the court also found that the defendant had not timely asserted the defendant's speedy trial right and that the defendant had not shown that the delay impaired the defense. Hassel v. State, 284 Ga. 861, 672 S.E.2d 627 (2009).

A 17-month delay in defendant's trial did not violate the defendant's constitutional rights since the defendant failed to assert either the defendant's statutory or constitutional right to a speedy trial and there was no evidence of a lengthy pretrial incarceration. Jernigan v. State, 239 Ga. App. 65, 517 S.E.2d 370 (1999).

Trial court did not err in refusing to dismiss defendant's case for a speedy trial violation as: (1) five to six months of the 17-month delay was due to defendant's motion for a continuance; (2) the state gave reasons for the remaining 11 or 12 months of the delay and reasons for the decision to reindict defendant; (3) there was no proof that the state intentionally delayed prosecution to impair the defense; (4) defendant did not file a speedy trial demand until 14 months after defendant's arrest; and (5) defendant did not present any evidence that defendant's defense was impaired due to the delay, nor did defendant show that defendant had to endure some burden beyond those that necessarily attended imprisonment. Lopez v. State, 267 Ga. App. 178, 598 S.E.2d 898 (2004).

A 22-month delay.

- Trial court did not abuse the court's discretion by denying the defendant's motion to dismiss the charges for lack of a speedy trial because while the lengthy delay was attributable to the state, the defendant did not assert the right to a speedy trial in the 22 months after the defendant's current counsel was hired, and the defendant was not significantly prejudiced by the delay; the state's failure to produce the codefendant did not prejudice the defendant since the defendant could have subpoenaed the codefendant personally instead of relying on the state to produce the codefendant simply because the codefendant was included in the state's witness list. Ward v. State, 311 Ga. App. 425, 715 S.E.2d 818 (2011).

Three year delay.

- There was no speedy trial violation under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a). Although the delay of over three years was presumptively prejudicial, the delay was primarily attributable to the defendant; the defendant delayed in asserting the constitutional right to a speedy trial; and the defendant's generalized statements, along with the fact that the record did not show that trial counsel attempted to locate the physician who examined the victim, did not suffice to show prejudice. Robinson v. State, 298 Ga. App. 164, 679 S.E.2d 383 (2009).

A 32-month delay.

- With regard to charges of aggravated child molestation, child molestation, and rape, a trial court did not err in denying a defendant's motion for discharge and acquittal since although the 32 month passage of time between the defendant's arrest and the filing of the motion for discharge was presumed prejudicial and more than half of the delay was attributable to the state, the defendant waited 32 months to file the motion and failed to show any prejudice arising from the delay. The defendant failed to explain what physical evidence was affected by the passage of time and merely made a generalized statement that memories fade over time. Wofford v. State, 299 Ga. App. 129, 682 S.E.2d 125 (2009).

A 40-month delay was not prejudicial.

- In a defendant's motion for acquittal based upon a speedy trial violation under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), although the delay of 40 months raised a presumption of prejudice, no evidence supported defendant's claim of anxiety and concern over the charges nor the defendant's claims that the defendant was unable to produce two witnesses who would have provided information material to the defendant's defense. In the absence of prejudice, the defendant's motion for acquittal was properly denied. Lynch v. State, 300 Ga. App. 723, 686 S.E.2d 268 (2009).

A 41-month delay.

- Denial of the defendant's motion to dismiss the indictment against the defendant was not an abuse of discretion since the defendant suffered no impairment to the defendant's defense and the defendant waited 41 months before asserting the defendant's federal and state constitutional rights to a speedy trial. Coney v. State, 259 Ga. App. 525, 578 S.E.2d 193 (2003).

Four-year delay.

- Although there was a presumption of prejudice due to the four-year delay with respect to a defendant's speedy trial rights under U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), there was no violation thereof upon analysis of the four factors; the reason for the delay was due to the defendant's counsel, the defendant did not file a timely demand for a speedy trial, and the defendant did not show prejudice. Brewington v. State, 288 Ga. 520, 705 S.E.2d 660 (2011).

A 54-month delay.

- Trial court erred by denying a defendant's motion to dismiss the indictment on speedy trial grounds, which charged the defendant with the crimes of aggravated assault, aggravated battery, and cruelty to children, as the 54-month delay at issue was substantial and longer than delays that the Georgia Supreme Court has described as egregious and deplorable; the evidence showed that the delay resulted from a deliberate, strategic decision by the state since it chose to dead-docket the case; and the defendant asserted the right to a speedy trial in due course. The trial court erred in several respects in the court's legal analysis of the defendant's constitutional speedy trial claim, namely: by failing to weigh the length of the delay as part of the court's balancing analysis and by failing to adequately address the reasons for that delay; by abusing the court's discretion in finding that the defendant's three-to-four month delay in asserting the right to a speedy trial should be weighed against the defendant; and by finding that the defendant was required to present additional evidence of actual prejudice caused by the state's conduct. Hayes v. State, 298 Ga. App. 338, 680 S.E.2d 182 (2009).

A 45-month delay presumptively prejudicial.

- For purposes of U.S. Const., amend. VI and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), a delay of three years and nine months from the date of the defendant's arrest and the date of the defendant's scheduled trial was presumptively prejudicial. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802 (2009).

Five year delay did not prejudice defendant.

- A trial court did not abuse the court's discretion in finding that a defendant failed to show a constitutional violation of the defendant's right to a speedy trial and by denying the defendant's motion for discharge and acquittal with regard to the defendant's convictions for sexual assault as the defendant never filed a speedy trial demand; there was no evidence nor finding by the trial court that the state intentionally delayed the trial to impair the defendant's defense; the defendant's failure to assert either a statutory or constitutional right to a speedy trial was entitled to strong evidentiary weight against the defendant; and the fact that the defendant never filed a speedy trial demand suggested that the defendant was not suffering anxiety or stress from the delay. The reviewing court noted that the five year delay in bringing the defendant to trial was solely based on requests from defense counsel due to illness, death in the family, or death of an expert witness. Disharoon v. State, 288 Ga. App. 1, 652 S.E.2d 902 (2007).

Despite the state's five-year delay in bringing defendant's child molestation case to trial, defendant's motion to dismiss based on defendant's speedy trial right was denied because the defendant waited more than five years to assert defendant's statutory right under O.C.G.A. § 17-7-171 and the defendant failed to show any prejudice resulting from the delay. Arbegast v. State, 301 Ga. App. 462, 688 S.E.2d 1 (2009), cert. denied, No. S10C0630, 2010 Ga. LEXIS 348 (Ga. 2010).

Defendant was not entitled to the dismissal of an indictment based on a violation of the defendant's speedy trial rights because, while the delay of 63 months from the date of arrest to the dismissal was presumptively prejudicial, the delay was based on the state's neglect rather than any bad faith; the defendant also failed to assert the right to a speedy trial in a timely manner as the motion was filed more than 15 months after the defendant's indictment. State v. Hartsfield, 308 Ga. App. 753, 711 S.E.2d 1 (2011).

13-year delay.

- Trial court's failure to conduct a hearing on defendant's motion for a new trial for roughly 13 years was excessive and improper but did not deny defendant due process since defendant suffered no prejudice as a result of the delay; the fact that the victim resided outside of Georgia at the time of the hearing, standing alone, neither prevented defendant from presenting an adequate appeal nor impaired a defense which would otherwise have been available to the defendant. Spradlin v. State, 262 Ga. App. 897, 587 S.E.2d 155 (2003).

15-year delay.

- While the length of the delay in bringing the appeal, 15 years, was excessive, the delay did not violate the defendant's due process rights since the delay was largely attributable to the defendant, the defendant failed to show that the defendant asserted the defendant's appellate rights for much of the 15-year period at issue, and the defendant failed to show actual prejudice to the defendant's ability to assert arguments on appeal. Payne v. State, 289 Ga. 691, 715 S.E.2d 104 (2011).

19-year delay.

- Because the trial court neglected to consider all of the Barker factors, including, the entire relevant pretrial delay of nearly 19 years that elapsed between defendant's arrest and the denial of defendant's plea in bar, a remand was required to determine if defendant's constitutional speedy trial rights were violated. Goddard v. State, 315 Ga. App. 868, 729 S.E.2d 397 (2012).

Two month delay.

- Delay in scheduling the defendant's trial was measured not from the defendant's arrest nor from the defendant's second indictment, but from the remittitur to the trial court on an earlier case involving the same charges; the delay of two and a half months between the remittitur and the scheduling of trial was not presumptively prejudicial and the defendant's right to a speedy trial was not violated. Roberts v. State, 279 Ga. App. 434, 631 S.E.2d 480 (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 645 S.E.2d 684 (2007).

Trial court miscalculated.

- On remand, a trial court erred by denying defendant's motion for discharge and acquittal based on a speedy trial violation because it made a significant factual error in its calculation of the length of the delay by not including the time that had elapsed between the trial court's original and new orders addressing the speedy trial claim. Richardson v. State, 318 Ga. App. 155, 733 S.E.2d 444 (2012).

Reason for delay.

- Because of extreme delay (seven years) in bringing the case to trial, the state's lack of any apparent, articulable reason for delay, and consequent impairment of the appellant's case, the appellant's Sixth Amendment due process right was violated by deprivation of a speedy trial. Lett v. State, 164 Ga. App. 584, 298 S.E.2d 541 (1982).

No violation of right when delay attributable to conduct of defendant.

- There is no violation of due process in respect to a speedy trial, when substantially all of the delay in bringing the defendant to trial appears to be directly or indirectly attributable to the conduct of the defendant. Mays v. State, 229 Ga. 609, 193 S.E.2d 825 (1972).

Defendant's right to a speedy trial was not violated although the delay was approximately 22 months, much of that was attributable to the defendant's hiring and discharging four different counsels prior to the final appointment, the defendant did not assert the defendant's demand for trial until almost a year after indictment, and the trial commenced ten months thereafter. Lynott v. State, 198 Ga. App. 688, 402 S.E.2d 747, cert. denied, 198 Ga. App. 898, 402 S.E.2d 747 (1991).

Because the delay in the appeal was caused by the defendant, the defendant's speedy trial rights were not violated. Smith v. State, 274 Ga. App. 568, 618 S.E.2d 182 (2005).

The trial court properly found that a defendant's right to a speedy trial was not violated since the defendant was responsible for at least seven months of the 18 months of delay and the defendant did not argue that the delay impaired the defendant's trial or affected the availability of witnesses or evidence; although the defendant claimed that there was damage to the defendant's private life, the defendant also testified that it was the arrest that affected the defendant's medical practice and family life and there was no evidence of any deliberate delay by the state intended to prejudice the defendant. Vyas v. State, 285 Ga. App. 467, 646 S.E.2d 692 (2007).

No violation when delay attributable to defendant and state.

- Defendant's speedy trial rights were not violated since the total delay was equally attributable to the defendant and the state, the trial court did not abuse the court's discretion as a matter of law in granting a continuance in the absence of a subpoena, there was no evidence the state deliberately attempted to delay the trial in order to hamper the defense, the defendant's assertion of the right to a speedy trial was untimely, the defendant failed to show prejudice, and any stress or anxiety that the defendant might have been experiencing was not undue. Carraway v. State, 263 Ga. App. 151, 587 S.E.2d 152 (2003).

Whether delay between indictment and trial violates constitutional right to speedy trial depends on circumstances.

- The mere passage of time is not enough, without more, to constitute a denial of due process. Hughes v. State, 228 Ga. 593, 187 S.E.2d 135 (1972); Dansby v. State, 140 Ga. App. 104, 230 S.E.2d 64 (1976); Simpson v. State, 150 Ga. App. 814, 258 S.E.2d 634 (1979); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).

When defendant was one of the people indicted in a multiple-murder case in which the state sought capital punishment, defendant did not show that a 38-month delay between defendant's indictment and trial was "presumptively prejudicial," because it was necessary for each co-indictee to be tried separately, and this triggered the state's statutory right, under O.C.G.A. § 17-8-4, to elect which defendant to try first; therefore, when the state elected to try defendant's co-indictee first, defendant's case was prosecuted with the promptness customary for death penalty cases involving multiple defendants, and the trial court did not have to balance the factors considered in deciding whether defendant's right to a speedy trial was violated, given the lack of presumptive prejudice. Wimberly v. State, 279 Ga. 65, 608 S.E.2d 625 (2005).

Dismissal of an indictment on speedy trial grounds was in error and remand was appropriate because the trial court erred in the court's key factual findings regarding the defendant's anxiety and concern and actual impairment to the defense and, additionally, the trial court attributed only eight months of delay to the State of Georgia, without addressing the reasons for the nearly eight additional years of delay, including a year of delay caused, apparently deliberately, when the defendant became a fugitive. Moreover, the trial court did not properly balance the factors so that the intermediate appellate court could not properly affirm the judgment. State v. Porter, 288 Ga. 524, 705 S.E.2d 636 (2011).

No violation of right when delay caused by hospitalization due to insanity.

- The fact that, at the petitioner's trial, the petitioner is adjudged insane upon a special plea of insanity and committed to the state hospital does not constitute a violation of the petitioner's right to a speedy trial. While the petitioner is insane, the petitioner cannot be legally tried. Connelly v. Balkcom, 213 Ga. 491, 99 S.E.2d 817 (1957), cert. denied, 355 U.S. 934, 78 S. Ct. 415, 2 L. Ed. 2d 416 (1958).

In extradition hearing.

- A trial court has no power to consider a claim of denial of speedy trial as to warrants issued in other judicial circuits. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808 (1980).

A defendant who is being held by one jurisdiction cannot force the officials of another judicial circuit in which the defendant is wanted to travel to the jurisdiction in which the defendant is incarcerated to test the continuing validity of their charges against the defendant by raising the claim that the defendant is being denied a speedy trial. Garrett v. Arrington, 245 Ga. 47, 262 S.E.2d 808 (1980).

Effect of assertion of or failure to assert right.

- While an accused has no responsibility to assert the accused's right to a speedy trial, the assertion of or failure to assert that right is a factor to be considered in an inquiry into the deprivation of the right. The accused's assertion of that right would be entitled to strong evidentiary weight in determining whether the accused has been deprived of the right. The accused's failure to assert the right to a speedy trial would make it difficult to prove that the accused was denied that right. Powell v. State, 143 Ga. App. 684, 239 S.E.2d 560 (1977).

Defendant's direct appeal from the denial of a speedy trial motion to dismiss lay given the state of Georgia law; however, the motion was properly denied because defendant, who had been incarcerated in the interim period, was equally responsible for the pretrial delay, never asserted the right to trial, never requested disposition of the subject offenses, suffered no prejudice, and did not suffer oppressive pretrial incarceration. Lamar v. State, 262 Ga. App. 735, 586 S.E.2d 416 (2003).

Although the defendant was arrested 33 years after the victim's body was found, because the defendant's trial was scheduled within five months after the defendant's arrest and two months after defendant's indictment, there was no speedy trial violation; since the defendant did not assert the claims in the trial court, the claims were not addressed on appeal. Moore v. State, 278 Ga. 473, 604 S.E.2d 139 (2004).

Court of appeals erred in determining, apparently from the court's own review of the record, that the speedy trial factor of whether, in due course, the defendant asserted the defendant's right to a speedy trial would be weighed against the defendant based on the more than five year delay from the defendant's arrest to the defendant's assertion of the right; a delay of over five years typically would warrant the speedy trial factor of whether, in due course, the defendant asserted the defendant's right to a speedy trial being weighed heavily against the defendant, and if the factor is to be weighed differently based on the particular circumstances of the case, that exercise of discretion is committed to the trial court, not the appellate courts. State v. Pickett, 288 Ga. 674, 706 S.E.2d 561 (2011).

Trial court erred by dismissing the murder indictment against the defendant based on a speedy trial violation because although the over five year delay was presumptively prejudicial, the defendant failed to assert the defendant's constitutional right to a speedy trial until after five years had passed and on the eve of the rescheduled trial, thus, the trial court should have determined whether that factor weighed against the defendant. State v. Johnson, 291 Ga. 863, 734 S.E.2d 12 (2012).

No merit to claim of denial of speedy trial when no demand for trial was made.

- Even if a demand for trial is made at the term an indictment is found, an accused is not entitled to a discharge for the failure to try the accused until the next succeeding regular term of court has passed without the accused being tried since no demand for trial was made and the accused was tried at the next succeeding regular term of court after the term at which the accused was indicted, the contention that the accused was denied a speedy trial is clearly without merit. Connelly v. Balkcom, 213 Ga. 491, 99 S.E.2d 817 (1957), cert. denied, 355 U.S. 934, 78 S. Ct. 415, 2 L. Ed. 2d 416 (1958).

Independent review of trial court record to insure compliance with constitutional dictates.

- Sixth Amendment to the United States Constitution combines with this paragraph to assure that every person charged with offending the laws of this state shall have a public and speedy trial by an impartial jury, and appellate courts must independently review the relevant trial court record in each case to insure compliance with these constitutional dictates. Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979), vacated on other grounds, 446 U.S. 961, 100 S. Ct. 2934, 64 L. Ed. 2d 819 (1980).

Indictments generally.

- There is no right to a speedy indictment. Griffin v. State, 282 Ga. 215, 647 S.E.2d 36 (2007), overruled on other grounds, Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008).

Failure to make written findings in speedy trial demand.

- Because the trial court's order denying the defendant's motion to dismiss the criminal charges against the defendant on the ground that the defendant's constitutional right to a speedy trial was violated contained no findings of fact or conclusions of law, the matter had to be remanded for a written order applying the speedy trial factors. Cawley v. State, 324 Ga. App. 358, 750 S.E.2d 428 (2013).

Right to appeal.

- A defendant may directly appeal from the pre-trial denial of either a constitutional or statutory speedy trial claim. Mayfield v. State, 264 Ga. App. 551, 593 S.E.2d 851 (2003).

Refusal by judge to grant written motion is appealable judgment.

- The refusal by a judge of a superior court to grant to a defendant in a criminal case not affecting a defendant's life, the defendant's written motion for a speedy trial pursuant to the defendant's constitutional right thereto is a judgment appealable to the Court of Appeals under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34). Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).

Trial by 12 jurors essential.

- As at common law, one accused of a crime was entitled to a trial by 12 upright men, so likewise it is essential that one accused of a crime shall in Georgia be accorded a trial before 12 men, upright and intelligent, if the right is to be preserved inviolate. Wright v. Davis, 184 Ga. 846, 193 S.E. 757 (1937) (decided under Ga. Const. 1877, Art. VI, Sec. XVIII, Para. I).

When the trial court does authorize a jury trial in an equity case, the composition of the jury is governed by the law which controls those cases in which there is a right to a jury trial, and when such a right is neither waived nor stipulated against, the trial court may not proceed with less than a twelve-person jury. Hague v. Pitts, 262 Ga. 777, 425 S.E.2d 636 (1993).

If juror excused with assent of defendant, no error when verdict by 11 jurors.

- If the evidence in a criminal trial, though partly circumstantial, was sufficient to authorize a finding that at the time one of the original 12 jurors was excused by the court, and in the presence of the court, the accused was consulted by counsel, and expressly assented, as the accused had the right to do, no error was committed even though the verdict was rendered by 11 jurors. Coates v. Lawrence, 193 Ga. 379, 18 S.E.2d 685 (1942).

Waiver.

- Defendant was properly tried by 11 jurors when defense counsel waived trial by 12 jurors in the defendant's presence, and the defendant stated no objection. Doomes v. State, 261 Ga. App. 442, 583 S.E.2d 151 (2003).

Superior Courts.

- Under this state's Constitution and statutes, a jury in the superior courts must be composed of 12 members. First Fid. Ins. Corp. v. Busbia, 128 Ga. App. 485, 197 S.E.2d 396 (1973) (decided under Ga. Const. 1976, Art. VI, Sec. XV, Para. I).

General Assembly may now provide for trial by a jury of any number, not less than five, in any court other than the superior courts. Smith v. Clayton, 80 Ga. App. 21, 55 S.E.2d 171 (1949) (decided under Ga. Const. 1945, Art. VI, Sec. XV, Para. I).

Provision authorizing General Assembly to prescribe not less than five jurors not unconstitutional.

- That portion of this paragraph which provides that "the General Assembly may prescribe any number, not less than five, to constitute a trial, or traverse jury, except in the superior (and city) court(s)," was not repugnant to the equal protection clause of U.S. Const., amend. 14 in that the state Constitution thus permitted the legislature to prescribe different and varying numbers of jurors in different courts in the same county for the same offense; and under former Code 1933, § 59-707 (see now O.C.G.A. § 15-12-125), misdemeanor defendants tried in a superior court have the right to a panel of 24 jurors and to challenge seven peremptorily, whereas under the Act controlling the trial of misdemeanors in the Criminal Court of Fulton County, defendant was deprived of any right to choose the court of the defendant's trial, and thus deprived of a chance to have 12 instead of five jurors decide unanimously on a verdict of guilty. McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5 (1940), cert. denied, 312 U.S. 695, 61 S. Ct. 732, 85 L. Ed. 1130 (1941) (decided under Ga. Const. 1877, Art. VI, Sec. XVIII, Para. I).

A five-member jury does not satisfy jury trial guarantee of U.S. Const., amend. 6, as applied to the states through U.S. Const., amend. 14. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978).

Unanimous vote needed to convict in criminal trial.

- Irrespective of its size, the Georgia jury in a criminal trial, in order to convict, must do so by unanimous vote. Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978).

No guarantee of representative cross section of community.

- There is no constitutional guarantee that grand or petit juries, impaneled in a particular case, will constitute a representative cross section of the entire community. Smith v. State, 151 Ga. App. 697, 261 S.E.2d 439 (1979).

Defendant's complaint that the panel of traverse jurors was not composed of a fair cross-section of the county's residents was without merit because the defendant was not constitutionally entitled, in a particular case, to a petit jury that was a representative cross-section of the entire community. Harris v. State, 272 Ga. App. 650, 613 S.E.2d 170 (2005).

Highly disproportional representation violates this paragraph.

- When the evidence showed that in three major identifiable groups (sex, race, and age), women are 91.2 percent underrepresented in the grand jury pool and 69.7 percent in the traverse or petit jury pool; Negroes are 49.5 percent underrepresented in the grand jury pool and 61.7 percent in the traverse or petit jury pools, coupled with the uncontroverted evidence from the jury commissioners that proportionally there are as many upright and intelligent women as men, Negroes as whites, and young adults as those over 30 years of age, the inescapable conclusion is that as a matter of law the jury commissioners were remiss in the execution of their statutory duties in compiling a jury list composed of "a fairly representative cross section of the intelligent and upright citizens of the county." Gould v. State, 131 Ga. App. 811, 207 S.E.2d 519, aff'd in part and rev'd in part, 232 Ga. 844, 209 S.E.2d 312 (1974).

Constitutionality of method of selecting grand jurors upheld against charges that it results in exclusion of young adults ranging in age from 18 to 30 years old. Estes v. State, 232 Ga. 703, 208 S.E.2d 806 (1974).

Georgia's constitutional and statutory scheme for selecting its grand juries is not inherently unfair, or necessarily incapable of administration without regard to race; the federal courts are not powerless to remedy unconstitutional departures from Georgia law by declaratory and injunctive relief. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970).

Opposition to death penalty.

- Trial court's disqualification of a juror for cause based upon the juror's opposition to the imposition of the death penalty was not an abuse of discretion as: (1) the juror initially indicated, although somewhat hesitantly, that under some circumstances the juror could perhaps seriously consider voting for a death sentence; (2) the juror went on to state that the juror believed the juror's reservations about the death penalty would interfere with the juror's ability to realistically consider it as a punishment option; and (3) the juror later indicated that, no matter what the circumstances, the juror would always choose either life without parole or life with the possibility of parole, but never death. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Defendant has burden of proving existence of systematic racial exclusion in selection of jurors. Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972).

Burden shifts once prima-facie case of racial exclusion made.

- Once a prima-facie case of racial exclusion in the selection of jurors is made, the burden shifts to the prosecution to disprove the existence of racial exclusion. Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972).

Procedural statutes regarding juries not part of system to procure impartial jury.

- The statutes for selecting jurors, drawing and summoning them, form no part of a system to procure an impartial jury to parties. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980).

Use of peremptory strikes to exclude minorities.

- Trial court clearly erred in accepting the state's explanations for striking four of the five African-American male jurors as race-neutral since: (1) the first juror was stricken for having an unstable job history, which was not supported by the record; (2) the second juror was stricken for wearing an earring, without an explanation as to how this affected the juror's ability to be impartial, and a caucasian juror wearing an earring was accepted; (3) the state mischaracterized the third juror's testimony that the juror intended to go to Panama City to have a good time, when the juror testified that the juror was going on a family vacation before returning to college; and (4) the fourth juror was stricken to reach other jurors, which could not defeat a Batson claim. George v. State, 263 Ga. App. 541, 588 S.E.2d 312 (2003).

In a Batson challenge, the trial court found that defendant made a prima facie showing of racial discrimination and proceeded to an evaluation of the state's explanations for its strikes against two African-American members of the jury venire, but the state's explanations that: (1) it struck the first prospective juror because that juror's answers did not relate to the questions asked of the juror and were not well articulated, leading the prosecutor to suspect that the juror possessed limited intelligence; and (2) it struck the second juror because the second juror's perceptions of an incident at a water fountain with another juror and the second juror's decision to report it indicated undue attention to issues of race, and that it would have struck any potential juror who reported such an incident, regardless of that juror's race, were race neutral and did not show any discriminatory intent; therefore, the trial court's ruling that defendant did not carry defendant's burden of proof to show a discriminatory purpose in the state's exercise of its peremptory strikes was not clearly erroneous. Roberts v. State, 278 Ga. 541, 604 S.E.2d 500 (2004).

Defendant did not show that a peremptory challenge to an African-American on a jury panel violated due process because the juror was challenged for the race-neutral reason that the juror had been arrested. Hernandez v. State, 274 Ga. App. 390, 617 S.E.2d 630 (2005).

Because the record did not support the defendant's Batson claim, the trial court did not err in denying the defendant's motion for a new trial. Quillian v. State, 279 Ga. 698, 620 S.E.2d 376 (2005).

Trial court properly denied a defendant's Batson challenge since the state indicated that it struck one juror because the juror indicated that the defendants are sometimes required to prove their innocence, which might have favorably disposed the juror toward the defendant because of the perception that it was unfair; the state struck a second juror because the juror was either non-responsive to questions, or would say one thing and then immediately contradict it, because the juror also stated that the juror felt that a criminal offense which required a two-year jail term was a small thing, and because many of the juror's answers could not be comprehended. Scott v. State, 280 Ga. 466, 629 S.E.2d 211 (2006).

Strength of the state's prima facie case of discrimination in response to the reasons the defendant gave for striking four jurors based on race supported a finding that the reasons given for the strikes were a pretext for racial discrimination; hence, the trial court did not clearly err by reseating these four jurors. Hicks v. State, 281 Ga. App. 217, 635 S.E.2d 830 (2006).

The trial court's finding that the defendant failed to set forth a prima facie case of racial discrimination sufficient to support a Batson challenge was not clearly erroneous, as the defendant failed to show that the totality of the relevant facts gave rise to an inference of discriminatory purpose. Moreover, the number of strikes by the state exercised against African-American veniremen did not give rise to an inference of discrimination. Ludy v. State, 283 Ga. 322, 658 S.E.2d 745 (2008).

Because the defendant waived any objection regarding an unsummoned juror, and because evidence supported the trial court's finding that the state's reasons for striking the challenged jurors were race-neutral, the defendant did not show that counsel's failure to object constituted ineffective assistance. Allen v. State, 299 Ga. App. 201, 683 S.E.2d 343 (2009).

Trial court did not abuse the court's discretion in ruling that the defendant failed to establish a prima facie case of discriminatory purpose based on gender by using seven of the prosecution's eight peremptory strikes against women. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655 (2011).

Trial court did not abuse the court's discretion in ruling that the defendant failed to establish a case of unconstitutional race-based discrimination by the prosecution using three of the prosecution's eight peremptory strikes against African-Americans. The reasons offered for the three strikes were race neutral and not pretextual. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655 (2011).

Trial court failed to make discriminatory intent finding.

- Case was remanded to the trial court for the required Batson findings as the trial court incorrectly stated that the state's explanation for the strikes was that a juror had been accused of a crime charged in the case; further, the trial court did not address the arguably similar situations of two jurors who were not stricken. Young v. State, 272 Ga. App. 304, 612 S.E.2d 118 (2005).

Trial court erred in failing to consider discriminatory intent.

- Trial court erred in ruling that the state's strike of a juror for an admission of illegal underage drinking was a legitimate reason under Pickett v. State as Pickett related to step 2 of the Batson procedure; the trial court failed to consider whether the state had a discriminatory intent in striking the juror and the case was remanded for such a finding. Young v. State, 272 Ga. App. 304, 612 S.E.2d 118 (2005).

Finding of no discriminatory intent proper.

- Trial court did not err in finding that the defendants failed to show discriminatory intent in the state's strike of a juror because the juror was a diabetic, did not appear to be in total command of the defendant's faculties, believed in witchcraft, was difficult to understand, and did not appear to understand questions. Young v. State, 272 Ga. App. 304, 612 S.E.2d 118 (2005).

Use of peremptory strikes to exclude males.

- Defendant's Batson challenge was properly rejected because one venireman's perceived inattentiveness and mannerisms were gender-neutral reasons for exercising a peremptory strike; defendant failed to preserve the claim of error in another venireman's strike because defendant did not challenge the state's claim that the venireman had served in the military. Reed v. State, 279 Ga. 81, 610 S.E.2d 35 (2005).

Findings regarding discriminatory intent.

- Trial court's finding of no discriminatory intent in striking a juror because the juror's father had been falsely accused of murder based on mistaken identity and the juror's brother had been accused of assault with a deadly weapon was not clearly erroneous; an issue of mistaken identity was raised in the armed robbery and aggravated assault case and a juror who was not stricken was not similarly situated as that juror's brother was convicted of manslaughter. Young v. State, 272 Ga. App. 304, 612 S.E.2d 118 (2005).

Juror properly disqualified for bias.

- Because a prospective juror stated during voir dire that the juror did not know if the juror could set aside the juror's friendship with defendant and render a fair and impartial verdict based on the evidence and the law, the prospective juror was properly excused for cause. Paul v. State, 296 Ga. App. 6, 673 S.E.2d 551 (2009).

No error in refusal to strike for cause when prospective juror had not prejudged case.

- When a prospective juror indicated that the prospective juror would expect a defendant to testify and would do the juror's best to follow the law if the court instructed the jury that no inference was to be drawn from the fact that the defendant chose not to testify, there was no error in the trial court's refusal to strike the prospective juror for cause, because nothing showed that the prospective juror had prejudged any issue in the case. Johnson v. State, 291 Ga. 621, 732 S.E.2d 266 (2012).

Editor's notes.

- Some of the cases noted under this heading were decided under the 1976 Constitution (Art. VI, Sec. XV, Paras. I, II) and antecedent provisions, which provided that grand jurors were to be "experienced, intelligent and upright" and that traverse jurors were to be "intelligent and upright."

Standards of intelligence, uprightness, and experience established for jurors in this paragraph do not violate the Constitution. White v. State, 230 Ga. 327, 196 S.E.2d 849, appeal dismissed, 414 U.S. 886, 94 S. Ct. 222, 38 L. Ed. 2d 134 (1973).

Jurors must be upright.

- This paragraph, in preserving inviolate the right of trial by jury, guarantees that every person charged with a crime shall be tried by upright jurors; hence, one who has been convicted of or has pleaded guilty to an offense involving moral turpitude is disqualified from serving as a juror; and, unless the disqualification is expressly or impliedly waived by both parties to the case, a verdict rendered by such juror is void. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403, later appeal, 54 Ga. App. 442, 188 S.E. 260 (1936).

Juror was not disqualified pending certiorari decision.

- However, a person who has not pled guilty nor served a sentence, but has certioraried the case, the certiorari being still pending, would not be disqualified to sit on a jury; the effect of the certiorari would be to supersede the judgment of the lower court, and whether or not the juror was disqualified would depend upon the ruling on the certiorari and further proceedings in the premises. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403, later appeal, 54 Ga. App. 442, 188 S.E. 260 (1936).

Juror not disqualified when verdict superseded by certiorari and ultimate question of guilt not determined.

- When the verdict and judgment finding a juror guilty of cheating and swindling has been superseded in the proper and legal way by certiorari, and the ultimate question of the juror's guilt has not been determined, the juror is not disqualified for the reason that the juror is not an upright juror. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403, later appeal, 54 Ga. App. 442, 188 S.E. 260 (1936).

Refusal to excuse upheld.

- Trial court did not err by refusing to excuse certain jurors, since the subject jurors indicated that the jurors would be able to base the jurors' decision on the evidence presented, would keep an open mind, and could consider all three sentencing options that would be available. Rice v. State, 292 Ga. 191, 733 S.E.2d 755 (2012).

Criminal record and impersonation of proper juror by fraudulent juror sufficient to justify new trial.

- When it appeared from the extraordinary motion for a new trial, that the name of one of the persons who served as a member of the jury which convicted the accused of rape and sentenced the accused to electrocution was not in the jury box, that such person obtained a place on the jury by fraudulently impersonating another, that before the trial this "juror" had twice been convicted of the offense of larceny of an automobile, and had served sentences under such convictions, that neither the movant nor any of the movant's attorneys had knowledge of these facts until after the movant's conviction and the affirmance of the judgment overruling the movant's original motion for a new trial, that they could not have discovered the facts earlier by the exercise of reasonable diligence, and that on discovering the facts they acted promptly in presenting the extraordinary motion for a new trial, the facts alleged therein were such as to require the grant of a new trial, in the absence of any showing to the contrary. Wright v. Davis, 184 Ga. 846, 193 S.E. 757 (1937).

Jurors were clients of opposing counsel.

- Pursuant to O.C.G.A. § 15-12-134 and Ga. Const. 1983, Art. I, Sec. I, Para. XI(a), a trial court erred in failing to either grant a challenge for cause or to effectively rehabilitate two jurors who expressed a clear preference for opposing counsel because both were or had been clients of opposing counsel. Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 722 S.E.2d 84 (2011).

Decision is "settled law" on principle that jurors are judges of law and fact.

- Anderson v. State, 42 Ga. 9 (1871) is the "settled law" on the interpretation of the meaning of the principle that the jurors are the judges of the law and the facts, and earlier cases contradicting it, in particular, Holder v. State, 5 Ga. 441 (1848); McGuffie v. State, 17 Ga. 497 (1885); and McPherson v. State, 22 Ga. 478 (1857), are overruled. Harris v. State, 190 Ga. 258, 9 S.E.2d 183 (1940).

Court construes law and jury applies law to facts.

- It is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence; while the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law. Harris v. State, 190 Ga. 258, 9 S.E.2d 183 (1940); Hall v. State, 201 Ga. App. 133, 410 S.E.2d 448 (1991).

Defendant could not acquiesce in trial court's preliminary statement and complain of it for the first time on appeal under O.C.G.A. § 5-5-24. The trial court's preliminary instruction properly informed the jury that under Ga. Const. 1983, Art. I, Sec. I, Para. XI(a): (1) it was absolutely and exclusively the judge of the facts in the case; (2) it was, in this sense only, the judge of the law; (3) it was the province of the court to construe the law and give it in the charge; and (4) it was the province of the jury to take the law as given, apply it to the facts as found by them, and bring in a general verdict. Whitehead v. State, 258 Ga. App. 271, 574 S.E.2d 351 (2002).

Jury has no right to make law.

- The jurors are the judges of the law and the facts so as to enable the jurors to apply the law to the facts and bring in a general verdict, but jurors have no right to make law; the law is laid down in the Code and it is the province of the court to construe the law and give it in the jury's charge, and of the jury to take the law as given, apply it to the facts as found by them, and bring in a general verdict. Harris v. State, 190 Ga. 258, 9 S.E.2d 183 (1940).

Jury determines under law given by court requirements for conviction.

- The question as to the amount of the narcotic substance necessary to sustain a conviction is solely for jury determination under the law as given by the court in the court's charge. Partain v. State, 139 Ga. App. 325, 228 S.E.2d 292 (1976), aff'd, 238 Ga. 207, 232 S.E.2d 46 (1977).

Jury are judges of law and facts, but judge may refuse to charge.

- Despite the fact that Ga. Const. 1983, Art. I, Sec. I, Para. XI provides that the jury are to be the judges of law and facts in a given case, there exists no error when the judge refuses to expressly charge the jury to that effect. Drummond v. State, 173 Ga. App. 337, 326 S.E.2d 787 (1985).

Jury selects between two, mutually exclusive, defense theories.

- While mutual combat and self-defense are mutually exclusive, if there is evidence of both, the jury, as trier of fact, must select between the two propositions. Simmons v. State, 172 Ga. App. 695, 324 S.E.2d 546 (1984).

Court must be requested to charge jurors that they are judges of law and facts. Reddick v. State, 11 Ga. App. 150, 74 S.E. 901 (1912).

New trial not required when omission to make charge that jurors are judges of law and facts.

- In the absence of a request to charge the jurors in a criminal case that they are the judges of the law and the facts, a new trial is not required by the omission of the court to charge to that effect. Reddick v. State, 11 Ga. App. 150, 74 S.E. 901 (1912).

Harmless error in charge of judges of law and facts.

- Error in charging the jury that "You will determine both the law and the facts" was harmless since the court properly instructed on the presumption of innocence, the elements of the charged offenses, and the state's burden of proof, and also charged the jury appropriately in response to their inquiries. Young v. State, 225 Ga. App. 208, 483 S.E.2d 636 (1997).

Court's charge that "You ladies and gentlemen will determine the law and the facts" was not erroneous and, when considered within the context of the entire charge, did not give rise to reversible error. Dasher v. State, 229 Ga. App. 41, 494 S.E.2d 192 (1997).

Jury must accept law as laid down by presiding judge.

- The interpretation made by the Supreme Court of this paragraph is that, while jurors are the judges of the law as well as of the facts in criminal cases, the jurors must accept the law as laid down and expounded to them by the presiding judge. Moyers v. State, 58 Ga. App. 237, 198 S.E. 283 (1938).

Instructions should not have misled jury to reject law charged by court.

- The mere use of the words, "except that" in an instruction that "the charge of the court is the law of the case, and by it you are bound, except that you are the judges of the law in applying it to the facts as you find them to be," could not have misled the jury into conceiving that they would be free to reject the law charged by the court. Davis v. State, 190 Ga. 100, 8 S.E.2d 394 (1940).

Instruction should not have prevented jury from considering offense.

- When the defendant was charged with aggravated assault with a knife and possession of a knife during the assault, an instruction that required the jury to find the defendant guilty of the possession charge if the jury found the defendant guilty of the assault was erroneous because the instruction prevented the jury from independently considering the possession charge. Johnson v. State, 223 Ga. App. 294, 477 S.E.2d 439 (1996).

Duty of jury to take law from court and evidence from witnesses.

- In the trial of criminal cases it is the duty of the jury to take the law from the court, as it is their duty to take the evidence from the witnesses. Moyers v. State, 58 Ga. App. 237, 198 S.E. 283 (1938).

Counsel may read and comment on law to jury in criminal case. See Warmock v. State, 56 Ga. 503 (1876); Wiggins v. State, 139 Ga. App. 98, 227 S.E.2d 895 (1976).

Effectiveness of counsel in requesting charge.

- Trial counsel was not ineffective in failing to request a charge in the exact language of Ga. Const. 1983, Art. I, Sec, I, Para. XI providing that, in criminal cases, the jury shall be the judges of the law and the facts; the trial court properly instructed the jury on its role. Whitehead v. State, 258 Ga. App. 271, 574 S.E.2d 351 (2002).

Right to waive trial by jury.

- This paragraph does guarantee the right of trial by jury, but this right may be waived and trial held before a judge alone. Phillips v. Meadow Garden Hosp., 139 Ga. App. 541, 228 S.E.2d 714 (1976).

The right of civil litigants to a jury trial may be expressly waived by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, or impliedly waived by voluntary participation in a nonjury trial under O.C.G.A. § 9-11-39. Raintree Farms, Inc. v. Stripping Ctr., Ltd., 166 Ga. App. 848, 305 S.E.2d 660 (1983).

The right to a jury trial is impliedly waived by participating in a bench trial and by failing to protest or object to a bench trial. Goss v. Bayer, 184 Ga. App. 730, 362 S.E.2d 768, cert. denied, 184 Ga. App. 909, 362 S.E.2d 768 (1987).

A criminal defendant has the right to waive a defendant's constitutional right to be tried by a jury of 12. Baptiste v. State, 190 Ga. App. 451, 379 S.E.2d 165, cert. denied, 190 Ga. App. 451, 379 S.E.2d 165 (1989).

The power of municipal courts to try and dispose of misdemeanor traffic offenses is conditioned upon the defendant's waiver of the right to a jury trial. Kolker v. State, 260 Ga. 240, 391 S.E.2d 391 (1990).

The defendant waived the right to a jury trial after the defendant proceeded with a bench trial even though the defendant and the defendant's attorney knew that there had been no formal waiver of a jury trial, and asserted the right to a jury trial after conviction by the court, and then ignored the trial judge's order to remain in the courtroom until such time as a jury trial could be arranged. Slater v. State, 251 Ga. App. 620, 555 S.E.2d 8 (2001).

Trial court told defendant of the right to a jury trial and that the jury had to return a unanimous verdict in order to convict defendant on a charge, and the evidence showed that defendant then knowingly and intelligently waived the right to a jury trial in favor of having a bench trial before the trial court; accordingly, defendant waived the right to a jury trial and the convictions following the bench trial were affirmed. Young v. State, 273 Ga. App. 151, 614 S.E.2d 257 (2005).

Claim on appeal that the trial court erred by refusing to consider a request for a nonjury bench trial in a criminal matter was preserved for review despite the fact that the counsel did not state an exception or file an objection to the trial court's ruling, as the "bill of exceptions" requirement was abolished a long time ago pursuant to O.C.G.A. § 5-6-49(a); the trial court did not err, as there was no requirement that a defendant be given a nonjury trial upon a request and nothing prevented trial courts from ensuring that defendants were given their constitutional jury trial right pursuant to Ga. Const. 1983, Art. I, Sec. I, Para. XI. Lindo v. State, 278 Ga. App. 228, 628 S.E.2d 665 (2006).

Before a defendant could effectively waive the right to a jury trial and demand a bench trial, the state's consent had to be obtained, in addition to the trial court's agreement to conduct a bench trial pursuant to the defendant's demand. Zigan v. State, 281 Ga. 415, 638 S.E.2d 322 (2006).

Personal waiver by defendant of jury trial not necessary.

- It is not necessary for the preservation of due process that a defendant personally waive the right to a jury trial. Little v. Stynchcombe, 227 Ga. 311, 180 S.E.2d 541 (1971).

While it may be a better practice, it is not necessary for an accused to personally waive the right to a jury of 12 and agree to be tried by a jury of less than 12. Counsel for the accused may validly waive this right for the accused if: (1) the waiver is made, without objection, in the accused's presence; or (2) the accused otherwise acquiesces in the waiver. Davis v. State, 192 Ga. App. 47, 383 S.E.2d 615 (1989).

Waiver of the right to a jury trial in open court is preferred, but it is not required. The record showed that the defendant personally, voluntarily, knowingly, and intelligently participated in the decision to waive the right to a jury trial since the defendant and the defendant's appointed counsel, who was also the defendant's counsel on appeal, signed an affidavit waiving that right. Stanley v. State, 267 Ga. App. 379, 599 S.E.2d 331 (2004).

Failure to request a trial by jury is waiver thereof. Green v. Austin, 222 Ga. 409, 150 S.E.2d 346 (1966).

Waiver of the right to confrontation cannot be presumed from a silent record; the record must show a knowing, intelligent, and voluntary waiver made with the accused's consent. Aaron v. State, 172 Ga. App. 700, 324 S.E.2d 564 (1984).

Implied waiver permitted by statute of one trial issue not sufficient to presume waiver of jury trial as to other issues.

- Since there can be no presumption of waiver of trial by jury when such trial is provided by law, and since statute contains nothing to indicate that failure to demand a trial by jury upon issues of fact arising upon exceptions to an examiner's report should be considered as a waiver of anything except a trial by jury upon issues of fact so arising, such implied waiver cannot be treated as consent for the trial judge to embrace the entire case and try issues of fact which did not arise upon exceptions to the examiner's report, but which, after the sustaining of exceptions and the annulment of the report, will exist only in the general pleadings and the evidence. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).

Case requiring express waiver of jury trial.

- Exceptions of fact to an auditor's report in a law case must be decided by jury unless the jury trial is expressly waived. This does not mean an implied waiver but that there must be an express waiver. Simonton Constr. Co. v. Pope, 213 Ga. 360, 99 S.E.2d 216 (1957).

State bears burden of showing defendants waived rights.

- Since the defendants' trial was not transcribed, and the record did not contain a written waiver of the defendants' right to a jury trial, the state bears the burden of showing the waiver was made both intelligently and knowingly, and, considering the record in its entirety, the state did not meet the state's burden of showing that the defendants were aware that the defendants waived their right to a jury trial and that the defendants personally and intelligently participated in that waiver. Capelli v. State, 203 Ga. App. 79, 416 S.E.2d 136 (1992), overruled on other grounds, Barnes v. State, 275 Ga. 499, 570 S.E.2d 277 (2002).

Defendant may revoke waiver of jury trial if timely and does not affect cause of justice.

- While a defendant in a misdemeanor case on an accusation or indictment may waive trial by jury and cannot complain after trial and conviction of a denial of the right, nevertheless, at any time on or before trial, a defendant may revoke the waiver, provided a defendant acts timely and in such season as not substantially to delay or impede the cause of justice, especially when the state makes no point as to delay or prejudice. Wilson v. State, 60 Ga. App. 641, 4 S.E.2d 688 (1939).

Right to revoke waiver of jury trial subject to proof that it would delay or impede justice.

- The right to revoke the waiver of the right to a jury trial is subject only to proof of special circumstances showing that its exercise would "substantially delay or impede the cause of justice." Brumbalow v. State, 128 Ga. App. 581, 197 S.E.2d 380 (1973).

Proof needed to revoke waiver of right to jury trial.

- The right to revoke the waiver of the right to a jury trial is subject only to proof of special circumstances showing that its exercise would "substantially delay or impede the cause of justice." Brumbalow v. State, 128 Ga. App. 581, 197 S.E.2d 380 (1973).

Right to public trial may be waived by defendant by failure to make timely objection. Henderson v. State, 207 Ga. 206, 60 S.E.2d 345 (1950).

Entering guilty plea waives defense of right to speedy trial.

- Having fully and voluntarily entered a plea of guilty, a criminal defendant cannot raise as a defense the defendant's right to a speedy and public trial because in the case of a plea of guilty, such plea waives any defense known and unknown. Mason v. Banks, 242 Ga. 292, 248 S.E.2d 664 (1978).

Waiver of unanimous verdict permitted.

- If the constitutional right to a jury may be waived, the right, if it exists, to a unanimous verdict, can also be waived. Phillips v. Meadow Garden Hosp., 139 Ga. App. 541, 228 S.E.2d 714 (1976).

Acceptance of verdict returned by bare majority possible.

- If the parties to a civil case may validly agree to have their rights determined without any jury or with a jury of 11 or less members, it follows that they may with equal validity consent to accept a verdict arrived at by a specified number of jurors, even that of a bare majority. A party may waive constitutional rights designed for a party's benefit. Phillips v. Meadow Garden Hosp., 139 Ga. App. 541, 228 S.E.2d 714 (1976).

Counsel's advice to waive jury trial.

- Counsel was not ineffective for advising a murder defendant to waive the right to a jury trial. This advice was based on reasonable trial strategy as the defendant testified that counsel believed that a judge, having been exposed to cases involving similar violence, would be more lenient than a jury; moreover, the defendant's acquittal of murder and conviction on the lesser offense of voluntary manslaughter strongly supported the conclusion that counsel was effective, and the defendant was advised by the trial court that the decision to waive a jury trial rested with the defendant. Smith v. State, 291 Ga. App. 725, 662 S.E.2d 817 (2008).

Motion to withdraw guilty plea denied.

- Despite the defendant's age of 17 years and the defendant's claim that the defendant had not knowingly entered a guilty plea, the defendant's motion to withdraw the guilty plea to charges of child molestation and terroristic threats was properly denied because at a plea hearing the defendant testified that defense counsel explained the nature of the charges against the defendant and the possible defenses, the defendant testified that the defendant told defense counsel all the facts and circumstances known to the defendant about the charge, the trial court advised the defendant of the defendant's rights to a jury trial and all other rights that the defendant was waiving, and the defendant acknowledged that the defendant was waiving those rights, the trial court also advised the defendant of the minimum and maximum sentence the defendant could serve, and the defendant stated that the defendant had no response to the state's sentencing recommendation. Harland v. State, 262 Ga. App. 803, 586 S.E.2d 705 (2003).

Waiver not shown.

- When the state submitted the affidavit of trial counsel who averred only that at arraignment counsel waived a jury trial but the defendant also submitted an affidavit in which the defendant stated that trial counsel never discussed with the defendant at any time during the defendant's representation the advantages and disadvantages of a jury trial and further asserted that the defendant did not "knowingly, intelligently, and willingly" waive the defendant's right to a jury trial, nor did the defendant "ask or permit" trial counsel to make such a representation at arraignment, the defendant was granted a new trial since the state had not met the burden of showing the waiver was made both intelligently and knowingly. Hill v. State, 181 Ga. App. 473, 352 S.E.2d 651 (1987).

Upon a withdrawal of opposition by the state, because an inmate was not advised of the constitutional right to a jury trial, and the court could find no extrinsic evidence in the record to conclude that the inmate knowingly, intelligently, and voluntarily waived the right to a jury trial on the state drug charges at issue, an order denying habeas relief was reversed, and the case was remanded. Sutton v. Sanders, 283 Ga. 28, 656 S.E.2d 796 (2008).

Waiver shown.

- Defendant intelligently, knowingly, and voluntarily waived the right to a jury trial in a criminal matter because the trial court made a thorough inquiry to ensure that defendant understood the right to a jury trial, a Spanish interpreter was used, and defendant indicated that defendant wanted a judge to hear the case. Alvarado v. State, 271 Ga. App. 714, 610 S.E.2d 675 (2005).

The trial court properly determined that the 16-year-old defendant waived the right to a jury trial; after being informed that the defendant wanted a bench trial, the trial court addressed both the defendant and the defendant's mother directly, informed the defendant of the right to a jury trial, offered the defendant more time to discuss the issue with defense counsel, and confirmed that defense counsel had addressed the benefits and hazards of a jury trial with the defendant. Edwards v. State, 285 Ga. App. 227, 645 S.E.2d 699 (2007).

Because the record affirmatively showed that the defendant knowingly, voluntarily, and intelligently waived a right to a jury trial, remand for resolution of that issue was unnecessary. Portilla v. State, 285 Ga. App. 401, 646 S.E.2d 277 (2007).

A trial court did not err by finding that defendant made a personal, knowing, and intelligent waiver of the right to a jury trial with regard to defendant's convictions for aggravated child molestation and two counts of child molestation after a bench trial because, before trial began, defense counsel stated that defendant wished to waive the jury trial right and proceed with a bench trial, and the trial court questioned defendant, who confirmed that defendant wanted a bench trial and that defendant understood the choice. Further, at the hearing on defendant's motion for a new trial, defendant testified that defendant discussed the matter at length with defense counsel before trial and stated that defendant wanted the judge, not a jury, to decide defendant's fate. Brumbelow v. State, 289 Ga. App. 520, 657 S.E.2d 603 (2008).

In an auto dealer's suit against a car buyer, the buyer's waiver of the right to a jury trial under Ga. Const. 1983, Art. I, Sec. I, Para. XI(a) and O.C.G.A. § 9-11-38 was implied by the buyer's failure to make a written demand for a jury trial or to object to the case being specially set for a bench trial at a hearing on the buyer's successful motion to vacate a judgment entered in favor of the dealer. Cole v. ACR/Atlanta Car Remarketing, Inc., 295 Ga. App. 510, 672 S.E.2d 420 (2008).

In a defendant's prosecution for criminal trespass, the defendant's waiver of the defendant's right to a jury trial was voluntary and intelligent because while the timing of the colloquy was unusual as a witness had already testified on direct, no indication was given that the trial court would not have honored the defendant's right to a jury trial and the defendant indicated that the defendant was comfortable with waiving that right. Thomas v. State, 297 Ga. App. 416, 677 S.E.2d 433 (2009).

Finding that the defendant voluntarily, knowingly, and intelligently waived the right to a jury trial was supported by a signed waiver of the right and trial counsel's testimony that counsel explained to the defendant that the defendant had a right to a jury trial and that counsel believed a judge would be more receptive than a jury to the technical legal defense they had discussed. Seitman v. State, 320 Ga. App. 646, 740 S.E.2d 368 (2013).

Record showed that the defendant knowingly and intelligently waived the defendant's constitutional right to a trial by jury as immediately before the trial began, the trial court asked the defendant if the defendant understood that the defendant had a right to a jury trial and asked whether the defendant was "voluntarily and knowingly waiving" that right, and defendant responded affirmatively to both questions. Only after receiving the defendant's oral assurance that the defendant wished to waive trial by jury and proceed to trial before the court did the trial court accept the defendant's waiver. Simmons v. State, 321 Ga. App. 743, 743 S.E.2d 434 (2013).

Am. Jur. 2d.

- 47 Am. Jur. 2d, Jury, §§ 6 et seq., 66 et seq.

C.J.S.

- 50A C.J.S., Juries, § 4 et seq.

ALR.

- Right to jury trial in proceeding in removal of public officer, 8 A.L.R. 1476.

Right to jury trial in case of seizure of property alleged to be illegally used, 17 A.L.R. 568; 50 A.L.R. 97.

Constitutionality of statute requiring party demanding jury to pay jury fees or charges incidental to summoning or impaneling of jurors, 32 A.L.R. 865.

Effect of, and remedies for, exclusion of eligible class or classes of persons from jury list in criminal case, 52 A.L.R. 919.

Right to jury in will contest, 62 A.L.R. 82.

Right to consent to trial of criminal case before less than twelve jurors; and effect of consent upon jurisdiction of court to proceed with less than twelve, 70 A.L.R. 279; 105 A.L.R. 1114.

Statutes in relation to subject matter or form of instructions by court as impairing constitutional right to jury trial, 80 A.L.R. 906.

Waiver of right to jury trial as operative after expiration of term during which it was made, or as regards subsequent trial, 106 A.L.R. 203.

Right to jury trial in suit to remove cloud, quiet title, or determine adverse claims, 117 A.L.R. 9.

Constitutional or statutory right of accused to speedy trial as affected by his incarceration for another offense, 118 A.L.R. 1037.

Waiver or loss of defendant's right to speedy trial in criminal cases, 129 A.L.R. 572; 57 A.L.R.2d 302.

Right of defendant to waive right of trial by jury where he is not represented by counsel, 143 A.L.R. 445.

Eligibility of women as jurors, 157 A.L.R. 461.

Right to jury trial as to fact essential to action or defense but not involving merits thereof, 170 A.L.R. 383.

Exclusion of women from grand or trial jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction, 9 A.L.R.2d 661.

Constitutional right to jury trial in proceeding for adjudication of incompetency or insanity or for restoration, 33 A.L.R.2d 1145.

Mandamus or prohibition as remedy to enforce right to jury trial, 41 A.L.R.2d 780.

Withdrawal of waiver of right to jury trial in criminal case, 46 A.L.R.2d 919.

Waiver or loss of accused's right to speedy trial, 57 A.L.R.2d 302.

Delay between filing of complaint or other charge and arrest of accused as violation of right to speedy trial, 85 A.L.R.2d 980.

Rule or statute requiring opposing party's consent to withdrawal of demand for jury trial, 90 A.L.R.2d 1162.

Sufficiency of waiver of full jury, 93 A.L.R.2d 410.

Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373.

Right in equity suit to jury trial of counterclaim involving legal issue, 17 A.L.R.3d 1321.

Prior service on grand jury which considered indictment against accused as disqualification for service on petit jury, 24 A.L.R.3d 1236.

Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.

Statute reducing number of jurors as violative of right to trial by jury, 47 A.L.R.3d 895.

Validity of pyramid distribution plan, 54 A.L.R.3d 217.

Separation of jury in criminal case before introduction of evidence - modern cases, 72 A.L.R.3d 100.

Separation of jury in criminal case during trial - modern cases, 72 A.L.R.3d 131.

Separation of jury in criminal case after submission of cause - modern cases, 72 A.L.R.3d 248.

Law enforcement officers as qualified jurors in criminal cases, 72 A.L.R.3d 895.

Former law enforcement officers as qualified jurors in criminal cases, 72 A.L.R.3d 958.

Right to a jury trial on motion to vacate judgment, 75 A.L.R.3d 894.

Propriety and prejudicial effect of trial court's inquiry as to numerical division of jury, 77 A.L.R.3d 769.

Illness or incapacity of judge, prosecuting officer, or prosecution witness as justifying delay in bringing accused speedily to trial - state cases, 78 A.L.R.3d 297.

Validity of requirement or practice of selecting prospective jurors exclusively from list of registered voters, 80 A.L.R.3d 869.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 A.L.R.3d 15.

Religious belief, affiliation, or prejudice of prospective jurors as proper subject of inquiry or grounds for challenge on voir dire, 95 A.L.R.3d 172.

Validity and efficacy of accused's waiver of unanimous verdict, 97 A.L.R.3d 1253.

Excusing, on account of public, charitable, or educational employment, one qualified and not specifically exempted as juror in state criminal case as ground of complaint by accused, 99 A.L.R.3d 1261.

Waiver, after not guilty plea, of jury trial in felony case, 9 A.L.R.4th 695.

Authority of state court to order jury trial in civil case where jury has been waived or not demanded by parties, 9 A.L.R.4th 1041.

Change of venue as justified by fact that inhabitants of local jurisdiction have interest adverse to party to civil action, 10 A.L.R.4th 1046.

Validity of agreement, by stipulation or waiver in state civil case, to accept verdict by number or proportion of jurors less than that constitutionally permitted, 15 A.L.R.4th 213.

Jury's discussion of parole law as ground for reversal or new trial, 21 A.L.R.4th 420.

Propriety and effect of jurors' discussion of evidence among themselves before final submission of criminal case, 21 A.L.R.4th 444.

Disruptive conduct of spectators in presence of jury during criminal trial as basis for reversal, new trial, or mistrial, 29 A.L.R.4th 659.

Propriety of order forbidding news media from publishing names and addresses of jurors in criminal cases, 36 A.L.R.4th 1126.

Right of accused, in state criminal trial, to insist, over prosecutor's or court's objection, on trial by court without jury, 37 A.L.R.4th 304.

Juror's reading of newspaper account of trial in state criminal case during its progress as ground for mistrial, new trial, or reversal, 46 A.L.R.4th 11.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.

Jury trial waiver as binding on later state civil trial, 48 A.L.R.4th 747.

Paternity proceedings: right to jury trial, 51 A.L.R.4th 565.

Right to jury trial in action for retaliatory discharge from employment, 52 A.L.R.4th 1141.

Exclusion of public from state criminal trial in order to preserve confidentiality of undercover witness, 54 A.L.R.4th 1156.

Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant, 55 A.L.R.4th 1170.

Exclusion of public from state criminal trial in order to avoid intimidation of witness, 55 A.L.R.4th 1196.

Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Validity of law or rule requiring state court party who requires jury trial in civil case to pay costs associated with jury, 68 A.L.R.4th 343.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time, 70 A.L.R.4th 632.

Small claims: jury trial rights in, and on appeal from, small claims court proceeding, 70 A.L.R.4th 1119.

Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed, 75 A.L.R.4th 91.

When does delay in imposing sentence violate speedy trial provision, 86 A.L.R.4th 340.

Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror, 3 A.L.R.5th 963.

Prospective juror's connection with insurance company as ground for challenge for cause, 9 A.L.R.5th 102.

Right to jury trial in action under state civil rights law, 12 A.L.R.5th 508.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case, 16 A.L.R.5th 152.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality, 80 A.L.R.5th 469.

Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings, 102 A.L.R.5th 227.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings, 110 A.L.R.5th 1.

Validity and application of computerized jury selection practice or procedure, 110 A.L.R.5th 329.

Adoption and application of "tainted" approach or "dual motivation" analysis in determining whether existence of single discriminatory reason for peremptory strike results in automatic Batson violation when neutral reasons also have been articulated, 15 A.L.R.6th 319.

Determination of request for exclusion of public from state criminal trial in order to preserve safety, confidentiality, or well-being of witness who is not undercover police officer - issues of proof, consideration of alternatives, and scope of closure, 32 A.L.R.6th 171.

Basis for exclusion of public from state criminal trial in order to preserve safety, confidentiality, or well-being of witness who is not undercover police officer, 33 A.L.R.6th 1.

Stranger's alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution, 131 A.L.R. Fed. 465.

Right to jury trial on issue of damages in copyright infringement actions under 17 USCA § 504, 163 A.L.R. Fed. 467.

Construction and application of Speedy Trial Act, 18 USCS §§ 3161 to 3174 - United States Supreme Court cases. 46 A.L.R. Fed. 2d 129.

Due process afforded in drug court proceedings, 78 A.L.R.6th 1.

Construction and application of Sixth Amendment right to speedy trial - Supreme Court cases, 17 A.L.R. Fed. 3d 4.