A Rabun County jury convicted James Bentley Cannon of rape, OCGA § 16-6-1; burglary, OCGA § 16-7-1; and aggravated assault, *778 OCGA § 16-5-21. Following the denial of his motion for new trial, Cannon appeals, contending the trial court erred in denying his motion to set aside a prospective juror for cause, in admitting certain scientific evidence, and in not merging the offenses of aggravated assault and rape. Cannon also argues he received ineffective assistance of counsel. For the reasons which follow, we reverse.
1. Cannon contends the trial court abused its discretion in denying his motion to set aside a prospective juror who was friends with the victim and was acquainted with Cannon, who had had a detailed conversation with the victim about the crime, and who expressed doubts about her ability to be impartial. We agree.
The test for disqualification for favor or partiality under OCGA § 15-12-164 (a) is whether a potential juror’s mind is not “perfectly impartial between the state and the accused.” See
Jordan v. State,
In this case, when the panel was asked whether anyone knew Cannon, the prospective juror at issue responded, ‘Yes, I know him from when he was a young boy in school. ... I worked in the cafeteria.” The prosecutor asked whether her acquaintance with Cannon would affect her ability to serve as a fair and impartial juror. The juror responded, “It might.” The prosecutor asked whether the juror could base a verdict solely on the evidence and the law as given by the court. The juror responded, “I would try.” The court then instructed her to give a “yes or no” answer and asked, ‘Would you be able to lay aside any previous experience or knowledge of [Cannon] and . . . decide this case based solely on the evidence that you hear and the law that I read to you in this case.” The juror responded, “Yes, sir.”
The prosecutor asked whether any of the jurors had talked to anyone with first-hand knowledge of the case. The same juror responded that she had talked to the victim. The prosecutor asked whether her discussion with the victim would influence her ability to be a fair and impartial juror. The juror responded, “I’m just not sure. I just couldn’t answer that.” The court asked, “Could you lay what /all have talked about aside and render a verdict in this case based solely on the evidence that you hear and the law I read to you?” The juror responded, ‘Yes.”
*779 Cannon’s counsel followed up by asking how long the juror had known the victim. The juror responded, “For a few years. I work in a little gift shop, and she was one of my customers.” Counsel asked whether the juror and the victim had discussed the events forming the basis of the charges. The juror responded affirmatively and indicated that the conversation was “right after the incident happened.” Counsel asked how the conversation started, and the juror responded, “We were friends. . . . She just kind of told me.” The juror indicated they talked for 20 to 30 minutes. Counsel asked how her relationship with the victim and their conversation about the crime would affect her service as a juror. The juror responded, “I’m just not sure,” and stated that it might affect her emotionally. Counsel asked whether the juror would be able to treat the victim’s testimony like that of any other witness. The juror responded, “Probably so. Yes. I think I can.”
Cannon’s counsel moved to excuse the juror for partiality based on her relationship with the victim and her extrajudicial knowledge of the crime. Without farther explanation, the trial court ruled as follows: “[B]ased on the responses [she] gave[,] I’m going to keep [her] in the case.” Cannon exercised a peremptory strike to excuse the juror.
“[A] juror may be found disqualified even though he insists he is not biased; therefore, the juror’s opinion of his qualification is by no means determinative.”
Jones v. State,
In this case, after the juror revealed her relationship with the victim and expressed doubts about her ability to be impartial, the trial court followed the common practice of “rehabilitating” the juror by asking whether she could lay aside her reasons for being partial and decide the case based solely on the evidence and the law as given by the court.
Wilson v. State,
We deplore the significant burden a retrial will impose on the victim, her family, and her community. We are particularly troubled by the trial court’s willingness to infect a trial with this kind of error when a solution (excusing the juror for partiality) was so readily available. As this Court recently observed:
A trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors because, in reality, the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury. . . . The trial judge, in seeking to balance the parties’ competing interests, must be guided not only by the need for an impartial jury, but also by the principle that no party to any case has a right to have any particular person on their jury.
(Footnote omitted.)
Walls v. Kim,
Even in the face of overwhelming evidence of guilt, however, we are precluded from finding the trial court’s abuse of discretion harmless. Since at least 1879, our appellate courts have held that requiring a litigant to exhaust peremptory strikes on unqualified jurors is harmful error.
Melson v. Dickson,
2. Cannon contends the trial court erred in admitting certain expert testimony because the State failed to establish that the testing procedure used had reached a scientific stage of verifiable certainty, citing
Izer v. State,
A plastics and trace evidence expert from the state crime lab testified that, using a light table, she visually compared a plastic bag found at the crime scene with a plastic bag found in Cannon’s home and concluded the bags had once been joined on a roll. The State presented no evidence that visual comparison of plastic bags to determine whether they had once been joined had reached a scientific stage of verifiable certainty. But the Supreme Court of Georgia has held that expert opinions which are based only on “observation and comparison of physical objects,” are “matters not of [scientific prin
*782
ciples] but of skill and experience.”
Belton v. State,
We conclude the standards of admissibility set forth in
Harper
are not applicable to this evidence because the visual comparison of the physical characteristics of two plastic bags does not involve the analysis of scientific data. See
Carr v. State,
3. Cannon contends the trial court erred in failing to merge the aggravated assault conviction into the rape conviction. See OCGA §§ 16-1-6 (1); 16-1-7 (a) (1). Again, because this issue may recur on retrial, we address it on the merits. Contrary to the State’s argument, Cannon preserved this issue by raising it in his amended motion for new trial.
Williams v. State,
Aggravated assault may merge into another violent crime where there was no “gratuitous violence employed against the victim in addition to” the force needed to complete the other offense.
Smith v. State,
There is no issue as to the victim’s lack of consent to the sex acts. The element of force necessary for a rape conviction was supplied by one or more of the acts by which Cannon overcame the victim’s resistance or induced her not to resist, that is, attacking the victim alone in a house where no one could come to her aid, tying her hands, blindfolding her, physically overpowering her, and putting her in fear of bodily harm. See
Roberts v. State,
4. Cannon’s contentions regarding effectiveness of counsel are moot in light of our holding in Division 1.
Judgment reversed.
Notes
See Rucker v. State,
We note that the record shows that Cannon exhausted his allotment of peremptory strikes. See OCGA § 15-12-165. Whether a defendant uses all of his peremptory strikes plays no role, however, in the evaluation of the harm caused by the refusal to strike an unqualified juror.
Harris v. State,
We disapprove the contrary statement in
Smith v. State,
OCGA § 15-12-160 was amended by Ga. L. 1992, p. 1981, § 1, to require a panel of 30 jurors in a noncapital felony trial and 42 jurors in a capital felony trial.