A Fulton County jury found Jeffrey Dunn guilty beyond a reasonable doubt of statutory rape, OCGA § 16-6-3 (a); solicitation of sodomy involving a person under the age of 18, OCGA § 16-6-15 (a), (b); and pandering, OCGA § 16-6-12. Dunn appeals from the denial of his motion for new trial, contending that the trial court abused its discretion in dismissing a juror and that it violated his constitutional right to be present during a critical stage of the proceedings. He also claims that he received ineffective assistance of counsel and that his convictions for solicitation of sodomy and pandering should have merged. For the following reasons, we reverse the judgment of conviction and remand this case for retrial.
1. Dunn contends that the trial court abused its discretion when it dismissed a juror during trial without conducting a hearing in his presence and without a sound legal basis for the dismissal.
The trial transcript shows that, at the beginning of the third day of trial and after the jurors were seated in the courtroom, Dunn’s counsel asked the trial court judge, “May we briefly approach?” The judge, the prosecutor, and defense counsel participated in a bench conference outside the hearing of the jury and the court reporter. After the bench conference was concluded, the judge made the following statement to the jury:
You know, the lawyers are great. . . . [T]hey are showing me up in places that I am weak. That takes a lot many times. They reminded me this morning that I should remind you-all, parts of trials are boring, okay. Sometimes they are boring. Sometimes they can make you sleepy, okay. If you get so sleepy that you are . . . unable to hold your head up, we need to stop and give you-all a break, okay. No one in this courtroom can afford the consequence of a juror going to sleep. It’s too important. So, if you can’t keep your attention *104 or whatever, okay, you let me know, and I will take breaks every 15 minutes because your attention is that important. So, let’s stay up. And if you need a break, you call on me, and . . . we will put some caffeine in your ear or something. All right. The State, call your next witness.
An hour later, following the testimony of three witnesses, a bench conference was conducted, after which the judge stated that, “The lawyers have let me know that this next witness could take a little while, so we will take a ten-minute break.”
A few minutes after the jury retired, while the jury was still out of the courtroom, the trial court judge made the following announcement in open court and in Dunn’s presence:
I have released [name omitted], who is juror No. 18, for two reasons. One is that he was asleep most of yesterday, and I’ve got a great concern that he may have missed crucial parts of the evidence. And the second [reason] is that there are two jurors, at least two, who [were] complaining about his body odor today, that it was distracting them from listening to and concentrating on the evidence. And for those reasons, I have released him, which makes our alternate . . . one of the original twelve men. So — all right. Are we ready to go?
The prosecutor responded, “Yes,” then asked, “Do you want, for the record — no objection?” The judge asked him, “Is there any objection from the State?” The prosecutor said, “No.” The judge asked, “How about from the defendant?” Defense counsel said, “No, your Honor.” 1 The judge then said, “Let’s bring [the jury] on out.” According to the transcript, the jury returned to the courtroom 23 minutes after the recess began.
(a) Under OCGA § 15-12-172,
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a trial court is vested with the discretion to discharge a juror and to replace him or her with an alternate juror at any time during the proceedings, as long as the trial court has a sound legal basis to do so.
Brooks v. State,
The trial court’s exercise of this discretion must be an “informed exercise,” however,
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.
(Citations and punctuation omitted.)
Herring v. State,
[t]here must be some sound basis upon which the trial judge exercises his discretion to remove the juror. A sound basis may be one which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion. Dismissal of a juror without any factual support or for a legally irrelevant reason is prejudicial [to the defendant].
(Citations and punctuation omitted.)
State v. Arnold,
In this case, there is nothing in the trial transcript to show that, at any time prior to announcing that he had dismissed the juror, the trial court judge made any statements in open court or in Dunn’s presence or otherwise indicated that he had personally observed the juror sleeping during the trial. Nor does the record show that, when the judge believed that the juror was actually sleeping during trial, he took any steps to wake the juror, 3 or that he questioned the juror *106 in the presence of Dunn and his counsel before deciding to dismiss the juror. 4 And, in the absence of any questioning of the juror on the record, the judge’s assertion that the juror “may have missed crucial parts of the evidence” due to sleeping the previous day lacks any evidentiary support and, thus, appears to be mere speculation on his part. It also begs the question of why the judge did not act immediately if it appeared that the juror was, indeed, sleeping through crucial evidence.
Moreover, regardless of the source and extent of the judge’s awareness of the juror’s alleged inattentiveness, the judge’s statements clearly show that he had no personal knowledge about the juror’s alleged offensive body odor and that, instead, he learned about the problem from someone else. Yet, there is no record of any communication between the judge and this unidentified person. 5 Thus, the record fails to show whether the judge learned of the alleged odor problem through an ex parte communication with one or more of the jurors or through a message from the jurors to the court bailiff; to establish whether the person complaining of the odor had personally observed the problem or had heard about it from someone else; or to show when or where this communication took place, who was present, or what was said. It is undisputed, though, that if there was an ex parte communication between the judge and one or more jurors, Dunn was not present or even aware of it prior to the court’s dismissal of the juror. 6 Finally, as with the alleged *107 problem of the juror sleeping through testimony, there is no record of any effort by the judge to resolve the alleged odor problem before resorting to the extreme remedy of dismissing the juror.
In a case presenting an analogous situation to the instant one,
Scott v. State,
The record in the instant case raises similar concerns. It demonstrates that, if the juror was, indeed, sleeping during trial, the judge failed to seek input from the State and the defense regarding the problem or to make any timely efforts to address the problem before resorting to the extreme solution of dismissing the juror. Further, even though he was lacking in any personal knowledge of the juror’s alleged body odor problem, the judge relied upon information obtained outside Dunn’s presence from unidentified sources of untested reliability in concluding that a problem existed and, upon reaching that conclusion, failed to make any effort to solve the problem in order to avoid dismissing the juror. Finally, to the extent the judge dismissed the juror on the basis of his concern that the
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juror may have missed “crucial evidence,” such concern is not a sound basis for dismissing the juror absent an effort to determine, in Dunn’s presence and on the record, whether such concern was based upon fact or mere speculation. Therefore, we conclude that the judge abused his discretion in dismissing the juror under the circumstances presented. See
Scott v. State,
(b) Although the record demonstrates that the trial judge improperly dismissed the juror in this case, we must still determine whether Dunn waived any objection to the dismissal by failing to assert it at trial or whether he knowingly acquiesced in his counsel’s statement to the judge that the defense had no objection to the dismissal.
“A waiver is an intentional relinquishment or abandonment of a known right or privilege.” (Citation and punctuation omitted.)
Russell v. State,
As for counsel’s statement that the defense did not object to the dismissal, the record does not support a finding that, by his silence, Dunn knowingly acquiesced in counsel’s statement.
Acquiescence means a tacit consent to acts or conditions, *109 and implies a knowledge of those things which are acquiesced in. One can not acquiesce in a wrong while ignorant that it has been committed, and the knowledge must be of facts. Acquiescence may arise where a person who knows that he is entitled to enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. Whether appellant knowingly acquiesced to the waiver of his presence, by his counsel, is a mixed question of law and fact.
(Citations and punctuation omitted; emphasis supplied.)
Russell u. State,
Thus, under the circumstances presented here, with nothing in the record to show that Dunn was informed that he had a right to be tried by the twelve jurors chosen at the beginning of his trial, that the judge was not authorized to change the composition of the jury by dismissing one juror and replacing him with an alternate without sufficient legal cause, and that he had a right to be present for any questioning or communications that served as a basis for the dismissal,
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we conclude that Dunn’s silence following his counsel’s waiver of any objection to the dismissal did not constitute his knowing acquiescence to such waiver. See
Russell v. State,
Finally, it is important to acknowledge that, at the time of the court’s announcement, the juror had already been released from service. Consequently, any objection to the dismissal by Dunn or his counsel at that time or at any point thereafter would have been futile due to the lack of any remedy.
Accordingly, we conclude that Dunn did not personally waive an objection to the dismissal of the juror, nor was Dunn sufficiently apprised of the law and the facts so that his silence following the abrupt dismissal could be viewed as his acquiescence to either the dismissal or to his counsel’s response. See
Sammons v. State,
2. Given our decision in Division 1, supra, Dunn’s remaining enumerations of error are moot.
Judgment reversed and case remanded.
Notes
Although defense counsel stated that he had no objection, we have concluded that Dunn did not waive any error in the dismissal of the juror for the reasons explained in Division 1 (b), infra.
“If 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 to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” OCGA § 15-12-172.
See
Foster u. State,
See
Smith v. State,
We note that a different judge presided over Dunn’s motion for new trial hearing.
We note that “[t]he right of the defendant to be present at all proceedings against him is an important right guaranteed by our State Constitution, and if a defendant is denied the right to be present at a critical stage, prejudice is presumed and a new trial is mandated.” (Citations omitted.)
Payne v. State,
Further, “[a] colloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present.” (Citation omitted.)
Hanifa v. State,
Cf.
State v. Arnold,
Cf.
Smith v. State,
See generally
Sammons v. State,
See, e.g.,
Hudson v. State,
See OCGA § 15-12-172;
Peterson v. State,
Cf.
Womack v. State,