349 S.E.2d 496 | Ga. Ct. App. | 1986
The defendant appeals his conviction for simple battery after the denial of his motion for new trial.
In his sole enumeration of error the defendant contends that the trial court erred in denying his motion for new trial because the jury was prejudiced by comments made prior to commencement of trial. The defendant’s argument is based on comments made by the judge in charge of greeting, organizing and managing the jury pool. The organizing judge told the prospective jurors that there was a delay in their selection for jury service because another judge was hearing motions in a case that “was having to be retried” and “it would be improper for [them] to be in the courtroom while the motions were being heard.” The organizing judge made no reference to the specific case which was to be retried. (There were over 50 cases on the criminal jury trial calendar on the week of the defendant’s trial.) The defendant maintains that these comments infected the jury’s minds as to the disposition of his guilt. We do not agree.
At the hearing on the defendant’s motion for new trial, the evidence showed that the jury that decided the defendant’s case was comprised of six jurors. Two of the former jurors were called by the defendant to testify at the hearing on his motion for new trial. Only these two jurors appeared as the remaining jurors either could not be reached or were excused by defendant’s counsel. Both jurors testified that they heard the comments Wade by the organizing judge while they were waiting for jury service and both jurors said that they speculated that the defendant’s case was being retried. However, upon cross-examination, the former jurors testified that the statement made by the organizing judge did not have an adverse bearing on their deliberations and verdict, concluding that the State had proven that the defendant was guilty of the crime charged beyond a reasonable doubt.
While not endorsing the conduct present in the case sub judice, under these circumstances we cannot say that the organizing judge’s comments were so irregular as to require a new trial. This conclusion is supported by the evidence showing that the comments did not adversely affect the jurors’ deliberations and verdict. Consequently, we find the State carried the burden of showing that the defendant sustained no injury. See Smith v. State, 218 Ga. 216 (2c, 3) (126 SE2d 789).
Judgment affirmed.
The defendant was previously convicted of simple battery under the accusation presented in the case sub judice. However, the first conviction was reversed by this court in Glaze v. State, 172 Ga. App. 802 (325 SE2d 172), under the mandate of Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49).
The defendant does not dispute that the evidence presented at trial was sufficient to support the verdict.