Ward v. State
288 Ga. 641
Ga.2011Background
- Ward and Kilgore were charged with malice murder and related offenses for a shooting at Reid's home; Finch, a confessed accomplice, testified at trial.
- The jury convicted both Ward and Kilgore; the cases were consolidated on appeal.
- The trial court ex parte discharged a juror during lunch without informing appellants or obtaining consent.
- Defense counsel did not object at the time, and the record shows no waiver by appellants.
- Georgia Supreme Court held the ex parte juror discharge violated the defendants' right to be present at all critical stages and required reversal and remand for a new trial.
- The Court overruled inconsistent precedents and indicated the remaining issues were not likely to recur on retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the juror's ex parte discharge a violation of the right to be present? | Ward and Kilgore contend violation of right to presence. | Ward and Kilgore argue ex parte discharge compromised due process. | Yes; reversal and remand required. |
| Did lack of waiver by appellants or their counsel prevent harmless error review? | State asserts any error was harmless due to later proceedings. | There was no waiver; counsel did not object or consent. | Error not waived; reversal remains required. |
| Are other claimed errors preserved or resolved on retrial? | Other ex parte communications may be errors. | Claims not likely to recur; not reaching merits. | Not addressed on the basis they are unlikely to recur. |
Key Cases Cited
- Baines v. State, 276 Ga. 117 (Georgia 2003) (requires corroboration of accomplice testimony)
- Pennie v. State, 271 Ga. 419 (Georgia 1999) (right to be present at trial proceedings; critical stage)
- Holsey v. State, 271 Ga. 856 (Georgia 1999) (presence right and waiver principles)
- Sammons v. State, 279 Ga. 386 (Georgia 2005) (jury composition as a critical stage; right to presence)
- Smith v. State, 284 Ga. 599 (Georgia 2008) (harmless error review not applicable to right-to-presence violation)
- Russell v. State, 230 Ga.App. 546 (Georgia App. 1998) (inaction by counsel does not imply waiver)