A Fulton County jury found Teontre Crowley guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41 (a); aggravated assault, OCGA § 16-5-21 (a) (2) (with a deadly weapon); possession of a handgun by a person under the age of 18 years, OCGA § 16-11-132 (b); and possession of a firearm during the commission of a felony crime against anothеr person, OCGA§ 16-11-106 (b) (1). He appeals from the denial of his motion for new trial, contending that the trial court abused its discretion when it improperly dismissed a juror, that it erred in denying his motion for mistrial that was based upon the juror’s dismissal, and that it erred in refusing to instruct the jury on robbery as a lesser included offense оf armed robbery. He also contends that his convictions for armed robbery and aggravated assault should have been merged for sentencing. For the following reasons, we affirm the judgment of conviction, but vacate in part Crowley’s sentence and remand for resentencing.
1. Crowley cоntends that the trial court abused its discretion when it improperly dismissed a juror without a sound legal basis and that it erred in denying his motion for mistrial that was based upon the juror’s dismissal. Pursuant to OCGA § 15-12-172,
[i]f at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found tо be unable to perform his duty, or is discharged/or other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.
(Emphasis supplied.)
In this case, the record shows the following, undisputed facts. The prosecutor and the attorneys for Crowley and his co-defendant, Samuel Hartley, selected twelve jurors and one alternate juror from the panels, and the trial court told the selected jurors to sit in the jury box as their number was called out by the court’s case manager. After the remaining potential jurors were dismissed, the selected jurors were sworn in, and the trial court gave them initial instructions, including the specific directions that they must not speak with anyone about the case or conduct any outside investigation about the case. After the jurors were released for the day, it was discovered that only 11 jurors and the alternate had been in the jury box during the oath and instructions and that Juror No. 35 had left the courtroom instead of sitting with the rest of the selected jurors, apparently because she had not heard her number when it was called. When the
As Crowley argues on appeal, while OCGA § 15-12-172 authorizes the trial сourt to exercise its discretion to dismiss a juror and replace him or her with an alternate,
it must be an informed exercise, since the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law. There must be some “sound” basis upon which the trial judge exercises his discretion to remove the juror. Dismissal of a juror for wаnt of any factual support, or for a legally irrelevant reason is prejudicial.
(Citations and punctuation omitted.) Herring v. State,
In this case, however, the trial court dismissed the juror and seated the alternate juror before the parties gave their opening statements or any evidence was presented. Thus,
[t] his is not a situation where the jury was deadlocked or had begun deliberations, when the need for investigation and the possibility of harmful error are heightened. [Crowley] has not shown how he was prejudiced by the use of an alternate, since pursuant to OCGA § 15-12-169, [1 ] alternates are selected in the same manner and must hаve the same qualifications as members impaneled as the jury. The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determinаtion is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review. Replacing the juror [in*757 this case] had no more effect of denying [Crowley] a qualified jury than if the juror had become ill or died. The alternate juror statute was designed to alleviаte situations such as these.
(Citations and punctuation omitted.) Herring v. State,
Accordingly, under the circumstances of this case, we find that the trial court’s replacement of Juror No. 35 with an alternate juror did not constitute reversible error.
2. Crowley argues that the trial court erred when it refused to instruct the jury on robbery
At around noon on May 24, 2007, the victim, an employеe of the College Park Golf Course, was mowing the grass when he was approached by two teenaged boys. One of the teenagers, who was later identified as Crowley, pointed a semiautomatic handgun at the
At trial, the court refused, over Crowlеy’s objection, to give a jury instruction on robbery as a lesser included offense of armed robbery because the uncontradicted evidence showed that a firearm was used to effectuate the armed robbery. Thus, the court concluded that, absent any evidence that the robbery was accomplished without the use of the firearm, the requested instruction on robbery was not adjusted to the evidence and was inapplicable. We agree.
When some evidence, even if slight, is presented that shows that a defendant committed a lesser included offense, the trial court should charge the jury on that offense. Rainly v. State,
In this case, we conclude that, given the evidence presented, the trial court did not err in refusing to give a jury instruction on robbery as a lesser included offense of armed robbery. Clark v. State,
3. Crowley also contends that his convictions for armed robbery and aggravated assault should have been merged for sentencing. We agree.
The indictment charged Crowley with committing two crimes against a single victim: armed robbery
It is axiomatic that “Georgia law bars conviction for a crime that arises frоm the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted.” (Citation and punctuation omitted.) Duncan v. State,
the important question is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, оne of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.
(Footnote omitted.) Drinkard v. Walker,
In this case, the evidence showed that the co-defendants’ actions, which occurred either сoncurrently or in rapid succession, were
We conclude, therefore, that Crowley’s convictions for armed robbery and aggravated assault should have been merged for sentencing. Long v. State,
Judgment affirmed, sentence vacated in part, and case remanded for resentencing.
Notes
See OCGA § 15-12-169 (“Alternate jurors shall be drawn from the same source and in the same manner and have the same qualifications as the jurors already sworn. They shall be subject to the same examination and challenges. . . .”).
See also Brooks v. State,
See OCGA § 16-8-40 (a) (The statute states, in relevant part, that “[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from thе person or the immediate presence of another... [b]y use of force; [or] [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another[.]”).
See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery whеn, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. . . .”).
Jackson v. Virginia,
See footnote 4, supra.
Seе OCGA § 16-5-21 (a) (2) (“Aperson commits the offense of aggravated assault when he or she assaults... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury [.]”); see also OCGA § 16-5-20 (a) (“A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”).
In so holding, the Supreme Court held that “the assault requirement of aggravated assault — that the defendant attempt to commit a violent injury to the victim or place the victim in reasonable apprehension of receiving a violent injury - [is] the equivalent of the ‘use of an offensive weapon’ requirement of armed robbery.” (Citation and punctuаtion omitted.) Long v. State,
See also Taylor v. State,