373 S.E.2d 382 | Ga. Ct. App. | 1988
Appellant was convicted of driving under the influence of alcohol, driving on the wrong side of the road, and carrying a concealed weapon. On appeal, he complains of the trial court’s conduct with jurors, of the refusal to give a charge, and of the prosecuting attorney’s closing argument. We find no error and affirm.
1. In his first enumeration of error, appellant complains that he was required to select a jury from a pool containing jurors with whom the trial court had had improper contact. It appears from the record that the trial judge regularly goes to the jury room after a jury has been dismissed for the purpose of answering any questions the jurors have. The trial judge explained on the record that he answers those questions he can answer without influencing the jurors in any way that might affect future service on a jury. Appellant does not allege that any improper communication occurred, just that it is improper for the trial judge to speak with jurors except in open court.
The Supreme Court held in Berryhill v. State, 235 Ga. 549 (12) (221 SE2d 185) (1975), that “[although all communications with the jury are to be discouraged except in open court with all persons present, the communication here did not amount to an instruction or charge to the jury and no reversible error is shown.” The latter portion of that holding is even more compelling in this case since the jury in Berryhill was then deliberating in that same case, whereas the jurors to whom the trial court spoke in this case had just finished service in a different trial and had not been chosen for this or any other trial. Although we find no harmful error here and approve of the trial court’s desire to educate the jurors, we share the concern expressed in Berryhill and suggest that the trial court answer questions in open court rather than in the jury room.
2. The second enumeration of error concerns the trial court’s refusal to give in its charge subsection (c) of OCGA § 16-11-126. That
3. The final enumeration of error is that the trial court erred in permitting the prosecuting attorney to make statements of personal belief in his closing argument. Consideration of that issue is foreclosed by appellant’s failure to have closing arguments transcribed. Defense counsel expressly declined, on the record, to have closing arguments taken down. Under those circumstances, there is nothing for this court to review. See Ford u. State, 160 Ga. App. 707 (5) (288 SE2d 39) (1981).
Judgment affirmed.
