☢ test - Í
witnesses on the severed counts as well as four similar transaction witnesses who did not testify. The jury was instructed that ‘Counts 1 and 2 are not before you and they are of no concern to you and you should draw no inferences either for or against the state or for or against the defendant or in any way. Those are just matters that have been removed totally from your consideration.’ Defendant maintains that the effect of the absent Counts 1 and 2, along with the blacking out with a marker made it apparent that additional criminal charges had been removed from the indictment thereby putting defendant’s character in issue. However, we find the trial court’s removal of all references to the severed charges along with instructions to the jury that they were to draw no inference from the redacting of the indictment to be sufficient to avoid any impermissible reflection on defendant’s character. Defendant’s reliance upon Morrow v. State, 229 Ga.App. 242, 245(4), 493 S.E.2d 616 (1997), is misplaced as there is no indication that the indictment in that case was redacted. The present case does not address whether an indictment should be redacted or which information should be removed, but involves the trial court’s range of discretion with regard to the manner in which such is accomplished. Undoubtedly, the circumstances will vary widely, but we are aware of no requirement that a document be redacted in such a fashion as to obscure the fact that it has been redacted .” B. ALTERNATES Brown v. State, 310 Ga.App. 285, 712 S.E.2d 521 (June 9, 2011). Vehicular homicide conviction affirmed; after replacing juror with alternate during deliberations, trial court was not required to give entire jury charge again. “Instead, the trial court instructed the jury to deliberate in accordance with previous jury instructions given by the court to the alternate and the remaining members of the jury.” O’Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (November 3, 2008). Capital murder and related convictions affirmed. Juror was beyond the number needed to select the jury plus alternates; “any error in failing to excuse him was harmless.” Accord, Rice v. State , 292 Ga. 191, 733 S.E.2d 755 (October 29, 2012). London v. State, 260 Ga.App. 780, 580 S.E.2d 686 (April 8, 2003). Aggravated assault and related convictions affirmed. “If an alternate juror does, in fact, sit in on the jury’s deliberations over the defendant’s objections, there is a presumption of harm to the defendant that the State must overcome by presenting affirmative evidence that the alternate juror did not participate in deliberations and that the jury was not influenced by the alternate juror’s presence,” however, the objection is waived if the defendant consents to the alternate’s presence in the jury room. Accord, Nelson v. State , 278 Ga.App. 548, 629 S.E.2d 410 (February 28, 2006); Chandler v. State , 309 Ga.App. 611, 710 S.E.2d 826 (May 17, 2011). C. ARRAY/GRAND JURY, DISCRIMINATION AGAINST COGNIZABLE GROUPS Johnson v. State, 293 Ga. 641, 748 S.E.2d 896 (September 23, 2013). Felony murder conviction affirmed; trial court properly denied challenge to the array based on excusal of jurors by clerk because “a written order authorizing the clerk to excuse potential jurors was in place and jurors who proffered medical excuses were not excused by the clerk indiscriminately. [fn] On the contrary, the clerk did not grant a potential juror's request without making an inquiry into the nature of the juror's problem; and not all jurors were excused or deferred. Moreover, ‘“there is absolutely no evidence that the excusals or deferrals in this case were allowed in such a manner as to alter, deliberately or inadvertently, the representative nature of the jury lists.” [Cit.]’ Young v. State, 290 Ga. 392, 394 (721 S.E.2d 855) (2012), quoting English v. State, 290 Ga.App. 378, 383 (659 S.E.2d 783) (2008). Thus, ‘[w]e do not find here such disregard of the essential and substantial provisions of the statute as would vitiate the arrays.’ Franklin v. State, 245 Ga. 141, 147 (263 S.E.2d 666) (1980).” Distinguishing Yates v. State, 274 Ga. 312 (553 S.E.2d 563) (2001), a death penalty case where “the clerk excused a number of potential jurors without inquiry” in direct contravention of the trial court’s order to bring all requests for excusal before the court. Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (November 19, 2012). Murder convictions affirmed, but death sentence reversed and remanded; trial court properly overruled defendant’s objections to composition of the grand and traverse jury lists. 1. Absolute disparities in grand jury list of less than five percent as to the citizen population of women, African-Americans and Hispanics “do not violate constitutional due process or fair cross-section limits or statutory requirements, nor do they even violate the prophylactic limit set forth in the Unified Appeal Procedure. See Edwards v. State, 281 Ga. 108, 109–110, 636 S.E.2d 508 (2006) (noting that the five percentage point limit imposed by the UAP is a prophylactic standard and holding that this Court lacks the constitutional power to reverse a conviction where the under- representation of a cognizable group in a grand jury pool does not rise to the level of a constitutional violation); Ramirez [ v. State , 276 Ga. 158, 161, 575 S.E.2d 462 (January 13, 2003)] (noting that grand jury composition challenges under the former version of OCGA § 15–12–40 are subject to ‘standards comparable if not identical to federal constitutional
Made with FlippingBook Ebook Creator