Dunn v. State
308 Ga. App. 103
| Ga. Ct. App. | 2011Background
- Dunn was convicted in Fulton County of statutory rape, solicitation of sodomy involving a person under 18, and pandering.
- Dunn challenged the trial court’s dismissal of a juror and claimed violation of his right to be present at a critical stage.
- The juror was discharged after a bench conference and a public statement that he had slept and had body odor concerns, with an alternate juror substituted.
- The dismissal occurred without Dunn or his counsel being informed of the reasons or asked for input on the decision.
- The court acknowledged concerns about ex parte communications and a lack of a personal, on-record basis for the juror’s dismissal.
- The Georgia Court of Appeals held that the juror dismissal was an abuse of discretion and reversed, remanding for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the juror’s dismissal an abuse of discretion? | Dunn argues dismissal without in-person hearing or proper factual basis violated OCGA § 15-12-172. | State contends the court validly replaced an potentially impaired juror to preserve trial integrity. | Yes; abuse of discretion; remanded for new trial. |
| Did Dunn waive objection to the dismissal? | Dunn did not knowingly waive his presence or rights; counsel’s waiver cannot bind him. | Defense counsel’s statement of no objection constituted waiver of Dunn's objection. | No; Dunn did not knowingly acquiesce; reversal and new trial remand. |
| Are remaining arguments moot after reversal on the juror-dismissal issue? | If juror dismissal is improper, other issues may be moot on retrial. | Some issues may survive for consideration on retrial. | Moot; other issues are subsumed by reversal and remand. |
Key Cases Cited
- Brooks v. State, 281 Ga. 14, 635 S.E.2d 723 (2006) (2006) (juror replacement requires sound legal basis)
- Payne v. State, 290 Ga.App. 589, 660 S.E.2d 405 (2008) (2008) (ex parte communications cautioned in jury issues)
- Scott v. State, 219 Ga.App. 798, 466 S.E.2d 678 (1996) (1996) (premature juror dismissal without proper inquiry; new trial)
- Sammons v. State, 279 Ga. 386, 612 S.E.2d 785 (2005) (2005) ( waivers require informed consent on record)
- Russell v. State, 236 Ga.App. 645, 512 S.E.2d 913 (1998) (1998) (acquiescence requires knowledge of right and waiver)
- Smith v. State, 284 Ga. 17, 663 S.E.2d 142 (2008) (2008) (court’s handling of sleeping juror; remedial actions)
- Herring v. State, 224 Ga.App. 809, 481 S.E.2d 842 (1997) (1997) (need for sound basis and careful inquiry in juror issues)
- Peterson v. State, 284 Ga. 275, 663 S.E.2d 164 (2008) (2008) (presence rights and record demands in jury matters)