2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 5 - Trial Juries
Part 2 - Juries in Felony Cases
§ 15-12-164. Questions on Voir Dire; Setting Aside Juror for Cause

1. On voir dire examination in a felony trial, the jurors shall be asked the following questions:
   1. "Have you, for any reason, formed and expressed any opinion in regard to the guilt or innocence of the accused?" If the juror answers in the negative, the question in paragraph (2) of this subsection shall be propounded to him;
   2. "Have you any prejudice or bias resting on your mind either for or against the accused?" If the juror answers in the negative, the question in paragraph (3) of this subsection shall be propounded to him;
   3. "Is your mind perfectly impartial between the state and the accused?" If the juror answers this question in the affirmative, he shall be adjudged and held to be a competent juror in all cases where the authorized penalty for the offense does not involve the life of the accused; but when it does involve the life of the accused, the question in paragraph (4) of this subsection shall also be put to him;
   4. "Are you conscientiously opposed to capital punishment?" If the juror answers this question in the negative, he shall be held to be a competent juror.
2. Either the state or the accused shall have the right to introduce evidence before the judge to show that a juror's answers, or any of them, are untrue. It shall be the duty of the judge to determine the truth of such answers as may be thus questioned before the court.
3. If a juror answers any of the questions set out in subsection (a) of this Code section so as to render him incompetent or if he is found to be so by the judge, he shall be set aside for cause.
4. The court shall also excuse for cause any juror who from the totality of the juror's answers on voir dire is determined by the court to be substantially impaired in the juror's ability to be fair and impartial. The juror's own representation that the juror would be fair and impartial is to be considered by the court but is not determinative.

(Laws 1843, Cobb's 1851 Digest, p. 843; Ga. L. 1853-54, p. 86, § 1; Ga. L. 1855-56, p. 229, §§ 9, 10; Code 1863, §§ 4569, 4570; Code 1868, §§ 4589, 4590; Code 1873, §§ 4682, 4683; Code 1882, §§ 4682, 4683; Penal Code 1895, §§ 975, 976; Penal Code 1910, §§ 1001, 1002; Code 1933, §§ 59-806, 59-807; Ga. L. 1979, p. 1047, § 1; Ga. L. 2005, p. 20, § 6/HB 170; Ga. L. 2011, p. 59, § 1-58/HB 415.)

- Ga. L. 2005, p. 20, § 1/HB 170, not codified by the General Assembly, provides that: "This act shall be known and may be cited as the 'Criminal Justice Act of 2005.'"

Ga. L. 2005, p. 20, § 17/HB 170, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all trials which commence on or after July 1, 2005.

Ga. L. 2011, p. 59, § 1-1/HB 415, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Jury Composition Reform Act of 2011.'"

- For comment on Tumlin v. State, 88 Ga. App. 713, 77 S.E.2d 555 (1953), see 16 Ga. B.J. 346 (1954). For comment discussing constitutionality of disqualification of jurors in murder trial for general objection to death penalty in light of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), see 3 Ga. L. Rev. 234 (1968). For comment on Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), see 31 Mercer L. Rev. 349 (1979).

ANALYSIS

• General Consideration
• Formation of Opinion as to Guilt or Innocence
• Existence of Prejudice or Bias
• Impartiality
• Opposition to Capital Punishment
• Conduct of Voir Dire

O.C.G.A. § 15-12-164 is not so confusing as to render the statute unconstitutionally vague. Curry v. State, 255 Ga. 215, 336 S.E.2d 762 (1985), cert. denied, 475 U.S. 1090, 106 S. Ct. 1480, 89 L. Ed. 2d 734 (1986).

Constitutional right of trial by jury is not impaired. Woolfolk v. State, 85 Ga. 69, 11 S.E. 814 (1890).

Machinery provided for testing juror's competency meets all constitutional requirements. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Object of this section is to appeal to conscience of juror. Kenyon v. Brightwell, 120 Ga. 606, 48 S.E. 124, 1 Ann. Cas. 169 (1904).

- These questions are designed to ascertain from the juror whether the juror has any opinion as to the guilt or innocence of the prisoner, either from having seen the crime committed or from having heard any testimony delivered on oath; and whether the juror has any prejudice or bias either for or against the prisoner, and whether the juror's mind is perfectly impartial between the state and the accused. Cade v. State, 207 Ga. 135, 60 S.E.2d 763 (1950).

- Trial court did not abuse the court's discretion in disallowing three of the defendant's proposed voir dire questions as the substance of the questions was covered when the trial court asked the three statutory questions set forth in O.C.G.A. § 15-12-164. Hurt v. State, 298 Ga. 51, 779 S.E.2d 313 (2015).

O.C.G.A. § 15-12-164 establishes the test for disqualification for favor, and the reference in O.C.G.A. § 15-12-133 to "the usual voir dire questions . . . put by the court" is to O.C.G.A. § 15-12-164, insofar as felony trials are concerned. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981).

- Even assuming the court errs in qualifying a juror, if the defendant does not use all the defendant's allotted peremptory strikes, the error, if any, was harmless. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 247 (1987).

Challenges for favor are based on admissions of juror or facts and circumstances raising a suspicion that the juror is actually biased for or against one of the parties. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981); Lovell v. State, 178 Ga. App. 366, 343 S.E.2d 414 (1986).

Public excitement alone is not sufficient ground for continuance. Hulsey v. State, 172 Ga. 797, 159 S.E. 270 (1931).

- Defendant was not deprived of the right to trial by an impartial jury merely because the juror was called as a witness for the state. Tumlin v. State, 88 Ga. App. 713, 77 S.E.2d 555 (1953), for comment, see 16 Ga. B.J. 346 (1954).

- This section does not embrace challenge on ground of juror's having contributed to fund raised for family of deceased. Thacker v. State, 226 Ga. 170, 173 S.E.2d 186 (1970), vacated on other grounds, 408 U.S. 936, 92 S. Ct. 2861, 33 L. Ed. 2d 753 (1972).

- Juror is disqualified in trial of capital felony if the juror is opposed to conviction upon circumstantial evidence. Compton v. State, 179 Ga. 560, 176 S.E. 764 (1934).

- No error existed if the juror realized during trial and informed court that the juror knew a witness by appearance although not by name as the judge immediately inquired into and was assured of the juror's impartiality. McLamb v. State, 176 Ga. App. 727, 337 S.E.2d 360 (1985).

- If error was assigned on the failure to excuse a juror for cause, a student who indicated the student was going to have two exams later that week, one on Wednesday and one on Friday, and the trial commenced on Monday and concluded on Tuesday, there was no showing that the student's impartiality would be, or was, in any way affected by such circumstances; there being no basis for disqualification under O.C.G.A. § 15-12-163 or O.C.G.A. § 15-12-164, the trial court did not abuse the court's discretion by failing to remove the juror. Robinson v. State, 180 Ga. App. 248, 348 S.E.2d 761 (1986).

No error in court not excusing jurors for cause. Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991).

- Trial court abused the court's discretion by excusing for cause a juror whose child had been prosecuted by one of the assistant district attorneys who was prosecuting the defendant's case and had been represented by the attorney who was representing a co-defendant because no adequate inquiry was made by the trial court as to whether an actual bias existed to justify excusing the juror for cause. Simon v. State, 320 Ga. App. 15, 739 S.E.2d 34 (2013).

Cited in Williams v. State, 60 Ga. 367, 27 Am. R. 412 (1878); Wilkerson v. State, 74 Ga. 398 (1884); Nobles v. State, 127 Ga. 212, 56 S.E. 125 (1906); Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696, 70 S.E. 234 (1911); Bailey v. United States, 53 F.2d 982 (5th Cir. 1931); Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934); Anderson v. State, 72 Ga. App. 487, 34 S.E.2d 110 (1945); Ford v. State, 202 Ga. 599, 44 S.E.2d 263 (1947); Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948); Barton v. State, 81 Ga. App. 810, 60 S.E.2d 173 (1950); Hooks v. State, 215 Ga. 869, 114 S.E.2d 6 (1960); Clemon v. State, 218 Ga. 755, 130 S.E.2d 745 (1963); Williams v. State, 222 Ga. 208, 149 S.E.2d 449 (1966); Gunter v. State, 223 Ga. 290, 154 S.E.2d 608 (1967); Clarke v. Grimes, 223 Ga. 461, 156 S.E.2d 91 (1967); Williams v. Smith, 224 Ga. 800, 164 S.E.2d 798 (1968); Bloodworth v. State, 119 Ga. App. 677, 168 S.E.2d 334 (1969); Moore v. Dutton, 432 F.2d 1281 (5th Cir. 1970); Cobb v. State, 228 Ga. 292, 185 S.E.2d 378 (1971); Cobb v. State, 125 Ga. App. 556, 188 S.E.2d 260 (1972); West v. State, 229 Ga. 427, 192 S.E.2d 163 (1972); Shouse v. State, 231 Ga. 716, 203 S.E.2d 537 (1974); Collier v. State, 232 Ga. 282, 206 S.E.2d 445 (1974); Davis v. State, 134 Ga. App. 750, 216 S.E.2d 348 (1975); Tennon v. State, 235 Ga. 594, 220 S.E.2d 914 (1975); Jones v. State, 137 Ga. App. 612, 224 S.E.2d 473 (1976); Green v. State, 138 Ga. App. 466, 226 S.E.2d 618 (1976); Robinson v. State, 238 Ga. 291, 232 S.E.2d 561 (1977); Foster v. State, 240 Ga. 858, 242 S.E.2d 600 (1978); Clary v. State, 151 Ga. App. 301, 259 S.E.2d 697 (1979); Marable v. State, 154 Ga. App. 426, 268 S.E.2d 720 (1980); Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980); Griffeth v. State, 154 Ga. App. 643, 269 S.E.2d 501 (1980); Tucker v. State, 249 Ga. 323, 290 S.E.2d 97 (1982); Walls v. State, 161 Ga. App. 235, 291 S.E.2d 15 (1982); Hatten v. State, 253 Ga. 24, 315 S.E.2d 893 (1984); Graham v. State, 171 Ga. App. 242, 319 S.E.2d 484 (1984); Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985); Fugitt v. State, 254 Ga. 521, 330 S.E.2d 714 (1985); Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986); Walker v. State, 179 Ga. App. 782, 347 S.E.2d 711 (1986); Day v. State, 188 Ga. App. 648, 374 S.E.2d 87 (1988), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); Crosby v. State, 188 Ga. App. 191, 372 S.E.2d 471 (1988); Moon v. State, 258 Ga. 748, 375 S.E.2d 442 (1988); Lattany v. State, 193 Ga. App. 438, 388 S.E.2d 23 (1989); Respress v. State, 196 Ga. App. 858, 397 S.E.2d 195 (1990); Brown v. State, 261 Ga. 184, 402 S.E.2d 725 (1991); Ward v. State, 262 Ga. 293, 417 S.E.2d 130 (1992); Staples v. State, 209 Ga. App. 802, 434 S.E.2d 757 (1993); Moore v. State, 224 Ga. App. 797, 481 S.E.2d 892 (1997); Bolick v. State, 244 Ga. App. 567, 536 S.E.2d 242 (2000); Brown v. State, 246 Ga. App. 60, 539 S.E.2d 545 (2000); Darnell v. State, 257 Ga. App. 555, 571 S.E.2d 547 (2002); McKee v. State, 275 Ga. App. 646, 621 S.E.2d 611 (2005); Chandler v. State, 281 Ga. 712, 642 S.E.2d 646 (2007).

Formation of Opinion as to Guilt or Innocence

1. In General

- Paragraph (a)(1) of this section seeks to obtain jurors who will consider case free from prejudgment or opinion regarding material facts. Roberts v. State, 4 Ga. App. 378, 61 S.E. 497 (1908).

Neutrality of mind must be effected. Myers v. State, 97 Ga. 76, 25 S.E. 252 (1895).

No disqualification results if opinion is vague. Blackman v. State, 80 Ga. 785, 7 S.E. 626 (1888), overruled on other grounds, Corbin v. State, 211 Ga. 400, 86 S.E.2d 221 (1955).

In order to disqualify a juror for cause it must be established that the juror's opinion is so fixed that it will not be changed by the evidence or charge of the court upon the evidence. Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524 (1978), cert. denied, 439 U.S. 1102, 99 S. Ct. 881, 59 L. Ed. 2d 63 (1979).

When prospective juror has formed opinion based on hearsay (as opposed to being based on the juror's having seen crime committed or having heard testimony under oath), to disqualify such individual as a juror on ground that the juror has formed an opinion on guilt or innocence of the defendant, the opinion must be so fixed and definite that it would not be changed by evidence or charge of court upon trial of the case. Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983); Childs v. State, 257 Ga. 243, 357 S.E.2d 48 (1987), cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

Qualified jurors need not be totally ignorant of facts and issues involved in order to guarantee that a defendant has "a panel of impartial, 'indifferent' jurors." Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

Mere existence of any preconceived notion as to guilt or innocence of accused is not sufficient to rebut presumption of juror's impartiality; rather a juror's impartiality is sufficient if the juror can lay aside the juror's impression or opinion and render a verdict based on the evidence presented in court. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- When a juror never indicated that the juror could set aside the juror's opinion of guilt if the defendant did not testify, and said that the juror could not answer truthfully that the juror would follow the trial court's instructions as to the burden of proof, it was error not to strike the juror for cause. McGuire v. State, 287 Ga. App. 764, 653 S.E.2d 101 (2007).

- To disqualify one from being a juror in a criminal case, the juror must have formed and expressed an opinion, either from having seen the crime committed, or from having heard the testimony under oath. One who from some other cause has formed and expressed an opinion that is not fixed and determined, and who indicates one's competency by answering the statutory questions on one's voir dire, is not an incompetent juror. Johnson v. State, 209 Ga. 333, 72 S.E.2d 291 (1952); Roach v. State, 221 Ga. 783, 147 S.E.2d 299, cert. denied, 385 U.S. 935, 87 S. Ct. 297, 17 L. Ed. 2d 215 (1966); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472, cert. denied, 444 U.S. 995, 100 S. Ct. 530, 62 L. Ed. 2d 425 (1979).

- To disqualify a juror in a criminal case, the juror must have formed and expressed an opinion, either from witnessing the crime or having heard sworn testimony concerning the crime. One who from some other sources had formed and expressed an opinion which is not fixed and determined and who indicates the juror's competency by answering the statutory questions on voir dire is not an incompetent juror. Smith v. State, 148 Ga. App. 1, 251 S.E.2d 13 (1978); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472, cert. denied, 444 U.S. 995, 100 S. Ct. 530, 62 L. Ed. 2d 425 (1979).

Considering the juror's response to the trial court's questions that the juror had reservations about what the defendants were charged with and what the defendants had done, the trial court did not err in determining that the juror did not hold a fixed and definite opinion of the defendants' guilt or innocence that would have prevented the juror from adjudicating the case based solely upon the evidence and the jury charge. Therefore, the trial court did not err by denying the defendants' challenge of that juror for cause. Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009).

- A "yes" answer to the question in paragraph (a)(1) of O.C.G.A. § 15-12-164 does not require the automatic excusal of the juror. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

- That a juror has formed or expressed an opinion from rumor or from newspaper reports will not disqualify the juror unless it appears that the opinion thus formed is so fixed and decided that the opinion would not yield readily to the testimony. Williams v. State, 177 Ga. 391, 170 S.E. 281 (1933).

Reports of the news media - newspapers, radio, and television - in the investigation of the crime by reports and pictures with detailed accounts and descriptions as to individuals alleged to be involved, their past history and quoted opinions of officers and prosecution officials, may be read or heard by prospective jurors in the county where the crime was committed. Such does not disqualify a juror from serving if on the voir dire the juror answers in the negative the questions propounded to a juror under this section. Williams v. State, 222 Ga. 208, 149 S.E.2d 449, cert. denied, 385 U.S. 887, 87 S. Ct. 184, 17 L. Ed. 2d 115 (1966).

There is no inference of prejudice requiring a change of venue, or a continuance, from the mere fact of the publishing of descriptive or even denunciatory matter, or even from the juror's having formed or expressed an opinion from rumor or from reports from newspapers or other news media; what is required is a showing that the juror had formed such a fixed or unchangeable opinion as to the guilt or innocence of the defendant as would not yield readily to the testimony. McCrary v. State, 229 Ga. 733, 194 S.E.2d 480 (1972).

- Paragraph (a)(1) of this section is available for use by the court in ascertaining the competency or incompetency of a juror in a misdemeanor case. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948).

- Failure to excuse juror for cause was reversible error since the juror had been at a preliminary hearing and had formed a definite opinion as to the defendant's guilt or innocence, and the juror was not asked nor did the juror state whether the juror could be a fair and impartial juror. Bass v. State, 183 Ga. App. 349, 358 S.E.2d 837, cert. denied, 183 Ga. App. 905, 358 S.E.2d 837 (1987).

2. Involvement in Previous Trial

Service as juror at previous trial and conviction deemed disqualification.

- Juror, who has served upon the trial of a person jointly accused with the defendant for the identical offense involving the same transaction, and has consented to a verdict of guilty against that person, is incompetent to try the defendant, even though the juror states that the juror has formed no opinion as to the defendant's guilt and that the juror can try the case impartially. Borders v. State, 46 Ga. App. 212, 167 S.E. 213 (1932).

- When in a murder trial, a juror's incompetency exists due to the juror's having served on the coroner's jury, but is not discovered until after the verdict, it may be urged under principles relating to newly discovered evidence by motion for a new trial. Under these principles, a new trial will not be required on such ground, if by ordinary diligence the defendant or defendant's attorney could have discovered the ground of incompetency of the juror before the verdict; the burden of showing such diligence being on the movant. Douberly v. State, 184 Ga. 573, 192 S.E. 223 (1937).

On trial of a defendant charged with murder, a juror who from having heard any of the testimony delivered on oath has formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar is incompetent and shall be set aside for cause, and such incompetency will be shown if it appears that the juror in question had served as a juror on a coroner's inquest over the body of the person alleged to have been slain, and after hearing testimony has joined in rendition of a verdict declaring that the deceased "came to his death from an assault with murderous intent by an unknown person and same was murdered." Douberly v. State, 184 Ga. 573, 192 S.E. 223 (1937).

- Even though a juror had heard the evidence on a previous trial of the same case, this would not disqualify the juror unless the juror had formed and expressed an opinion from having heard the testimony delivered under oath. Ford v. State, 164 Ga. 638, 139 S.E. 355 (1927).

Fact that several of the jurors placed upon the defendant had, at a previous trial of the accused under the same indictment, been placed upon the defendant, and had been rejected either by the state or the defendant, did not disqualify the jurors or afford a basis for challenge to the poll; nor did the fact that some of these jurors had heard a portion of the testimony delivered on the previous trial disqualify the jurors since it did not appear that any of such jurors, from having heard any of the testimony, had formed or expressed any opinion as to the guilt or innocence of the accused. Hyde v. State, 196 Ga. 475, 26 S.E.2d 744 (1943).

- If one juror in new sentencing trial had been spectator at appellant's previous trial and at trial of appellant's codefendant and second juror was a secretary in law firm that had represented appellant's codefendant, and if second juror had formed an opinion as to guilt but neither had formed an opinion as to sentence, neither was subject to challenge for prejudice since appellant had already been tried and convicted for murder and the sole question to be tried was that of punishment. Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1402, 67 L. Ed. 2d 372 (1981).

- It is not ground for continuance that some jurors trying the case were present at defendant's first trial; this point should have been made by a challenge to the polls. Crider v. State, 98 Ga. App. 164, 105 S.E.2d 506 (1958).

Existence of Prejudice or Bias

Meaning of "prejudice" and "bias."

- "Bias," in its legal acceptation, means only a leaning toward one of the parties rather than the other; and "prejudice" imports the formation of a fixed anticipatory judgment as contradistinguished from those opinions which may yield to evidence. Temples v. Central of Ga. Ry., 15 Ga. App. 115, 82 S.E. 777 (1914); Rowe v. State, 15 Ga. App. 660, 84 S.E. 132 (1915).

- Trial court would not commit reversible error in failing to excuse for cause a juror who exhibited a strong belief in the integrity and credibility of police officers, when under assiduous questioning the juror stated that, notwithstanding the juror's avowed faith in law enforcement persons, the juror would follow the instruction of the court as to the credibility of the witnesses and would weigh such testimony in the light of all the evidence. Watkins v. State, 160 Ga. App. 9, 285 S.E.2d 758 (1981).

- Although a juror was the uncle of the confidential informant (CI) in a drug selling case, the juror's relationship to the CI did not, by itself, disqualify the juror, and although the juror expressed that the juror would tend to believe the juror's nephew, the juror stated unequivocally that the juror could judge the testimony and the case impartially and be fair. Therefore, the trial court did not err in refusing to strike the uncle from the jury. Franklin v. State, 305 Ga. App. 574, 699 S.E.2d 868 (2010).

- Juror who stated she might subconsciously identify with a rape victim, but said her mind was impartial between the state and the defendant, was not subject to dismissal for cause under O.C.G.A. § 15-12-164. Laney v. State, 159 Ga. App. 609, 284 S.E.2d 114 (1981).

- Juror who has fear of, or some trepidation to, or some particular abhorrence to, a specific crime is not per se disqualified for cause as a juror in a trial of that type of criminal case. Harris v. State, 178 Ga. App. 735, 344 S.E.2d 528 (1986).

In order for a potential juror to be excused for cause, the person must be shown to hold an opinion of the guilt or innocence of the defendant that is so fixed and definite that the person will be unable to set the opinion aside and decide the case upon the evidence or the court's charge upon the evidence; therefore, personal knowledge of, or a relationship with, any witness, attorney, or party in the case is disqualifying only if it has created a fixed opinion of guilt or innocence or a bias for or against the accused. Thus, the trial court did not abuse the court's discretion in denying defendant's motion to excuse a juror for cause when, even though the juror's relations to the case presented a close call, the trial court engaged in the appropriate inquiries on voir dire; the juror's knowledge of the case and relationship with several members of the cast of characters involved had no bearing on whether defendant was innocent or guilty; and the juror was completely confident in the juror's ability to be fair and impartial. Gibson v. State, 267 Ga. App. 473, 600 S.E.2d 417 (2004).

Trial court did not abuse the court's discretion in refusing to strike a juror for cause even though the juror revealed that prior experiences might preclude the juror from being a fair juror and stated that the juror may have a bias based on the fact that defendant had two attorneys; the juror also stated that the juror would look to the evidence, not prior experiences or a perceived bias, to determine whether the defendant was guilty or innocent. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

With regard to a defendant's convictions for rape, aggravated battery, kidnapping with bodily injury, aggravated child molestation, and aggravated assault, during voir dire the trial court could question a juror further after the juror gave inconsistent answers about whether the juror thought the juror could be fair and impartial due to living near the crime scene, yet also stating that that same fact would not affect the juror's consideration of the evidence. Moreover, the transcript supported a finding that the juror did not have an opinion about the defendant's guilt or innocence that was so fixed and definite that the juror would have been unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence, and therefore the trial court did not abuse the court's discretion in failing to excuse the juror for cause. Pitts v. State, 287 Ga. App. 540, 652 S.E.2d 181 (2007).

Trial court did not err in not striking a juror for cause when the juror initially said that the juror did not think that the juror could be fair; the trial court found that the juror was credible in stating that the juror would serve as an unbiased juror, and it was uniquely positioned to observe the demeanor of each juror and thereby evaluate the juror's capacity to render an impartial verdict. Moorer v. State, 286 Ga. App. 395, 649 S.E.2d 537 (2007), cert. denied, No. S07C1910, 2007 Ga. LEXIS 806 (Ga. 2007).

- Although a prospective juror initially responded to the O.C.G.A. § 15-12-164(a) voir dire questions that the juror believed the defendant was guilty after hearing the indictment read, the juror later indicated that the juror understood that the state had to prove the allegations beyond a reasonable doubt. The trial court did not err in refusing to strike the juror for cause. Sadat-Moussavi v. State, 313 Ga. App. 433, 721 S.E.2d 647 (2011).

Trial court did not manifestly abuse its discretion when it did not excuse a prospective juror for cause sua sponte because, although the juror indicated the juror might have some issue with the defendant's status as a previously convicted felon, the juror stated that the juror could be objective and keep an open mind at trial. Thompson v. State, 294 Ga. 693, 755 S.E.2d 713 (2014).

Although two jurors initially indicated the jurors were unable to be fair and impartial, the jurors later concluded the jurors could set aside any preconceived notions and base the jurors' verdict on the law and evidence; the jurors were not required to be excused for cause under O.C.G.A. § 15-12-164(c)(3). Welch v. State, 298 Ga. 320, 781 S.E.2d 768 (2016).

Fact that a potential juror may have some doubt as to the juror's impartiality, or complete freedom from all bias, does not demand as a matter of law that the juror be excused for cause. Harris v. State, 178 Ga. App. 735, 344 S.E.2d 528 (1986).

- Trial court did not improperly rehabilitate a juror who stated that the juror would base the decision as to the defendant's guilt or innocence on the evidence presented at trial and not on the juror's prior experiences or perceived bias, but began equivocating about the juror's impartiality in response to questions from defendant's attorney; the court's question of whether the juror could listen to the evidence and decide the case based on what was heard from the witness stand did not constitute interrogation of the juror, and the one question merely confirmed that the juror's opinions and perceived bias were not so fixed as to warrant disqualification for cause. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

Fact that prospective jurors had been personally close to the murder victim and expressed some concern about judging the case impartially did not require their excusal for cause. Holmes v. State, 269 Ga. 124, 498 S.E.2d 732 (1998).

- Trial court committed reversible error for failing to disqualify a juror under O.C.G.A. § 15-12-164(a) since the juror was acquainted with the defendant, was friends with the victim, and had a detailed conversation with the victim about the rape, aggravated assault, and burglary allegedly committed by the defendant. The court's subsequent inquiry of the juror had the effect of eliciting the desired answers, rather than being a neutral attempt to determine the juror's impartiality. Cannon v. State, 250 Ga. App. 777, 552 S.E.2d 922 (2001), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018), overruled on other grounds, Jackson v. State, 254 Ga. App. 562, 562 S.E.2d 847 (2002).

- Trial court erred in reseating a juror after the prosecution claimed the defendant used peremptory challenges based on race. Horton v. State, 252 Ga. App. 419, 556 S.E.2d 503 (2001); Ayiteyfio v. State, 254 Ga. App. 1, 561 S.E.2d 157 (2002), overruled in part by Gay v. State, 258 Ga. App. 634, 574 S.E.2d 861 (2002).

- It was not error to refuse to allow defense counsel to ask upon voir dire whether prospective jurors had any tendency to believe police officers or witness for the state in preference to the accused, or, as rephrased upon objection, whether any juror had any bias or favor towards the testimony of a law enforcement officer. Morrison v. State, 155 Ga. App. 234, 270 S.E.2d 397 (1980).

- Cause for disqualification did not exist after the prospective juror stated a belief that there was a problem with the "system" of "too many handguns out there" and expressed concern that such belief might affect the juror's ability to be impartial, but, after questioning by the trial court, the juror responded that separation of the juror's personal belief about handguns from the job as a juror could be done and that the juror could base an impartial decision in the case on the evidence presented in the courtroom. Edmonds v. State, 275 Ga. 450, 569 S.E.2d 530 (2002).

- Trial court abused the court's discretion when the court denied the defendant's motion for mistrial because during a break in the proceedings but before the close of evidence, a juror initiated a conversation with the testifying victim, such that the juror alone had access to the victim's reaction to the juror's expressions of support, and the trial court never asked the juror what the victim's response had been and failed to examine the victim or the other jurors; the juror's unauthorized contact with the victim was intentional, no rehabilitation of the juror was possible, and the state failed to show that the defendant was not harmed by the misconduct. Fuller v. State, 313 Ga. App. 759, 722 S.E.2d 453 (2012).

- Trial court did not abuse the court's discretion when the court denied a defendant's motion to strike two jurors for cause based on the jurors' alleged bias because the jurors knew an officer who was involved as a witness in the defendant's criminal incident as the trial court propounded the statutory questions required by O.C.G.A. § 15-12-164(a) for a felony trial and did not limit trial counsel's ability to question the jurors; there was no evidence of bias, prejudice, or inability by the jurors to decide the case based on the evidence and the trial court's charge. Hornsby v. State, 296 Ga. App. 483, 675 S.E.2d 502 (2009).

Impaneling jurors who had been exposed to a newspaper article about the case was not erroneous because all of the jurors who were exposed indicated that they did not have a fixed opinion about the case and could render a fair, unbiased decision based solely on the evidence presented. Clay v. State, 322 Ga. App. 97, 744 S.E.2d 91 (2013).

Trial court did not abuse the court's discretion in denying the defendant's challenge for cause because the potential juror, who had a brother who had gotten hooked on drugs, believed that the juror could base a decision on the evidence and the judge's instructions and could be fair and impartial, and there was no showing that the juror held an opinion of the defendant's guilt or innocence so fixed and definite the juror would not be able to decide the case based on the evidence and the court's charge. Jones v. State, 338 Ga. App. 505, 790 S.E.2d 301 (2016).

Trial court did not abuse the court's discretion in denying the defendant's motion to strike a juror for cause after the juror indicated that the juror's upbringing caused the juror to be biased against some people on the basis of race as the trial court found that the answer was given in an attempt to evade service and the prospective juror had not formed an opinion as to the defendant's guilt or innocence. Budhani v. State, 345 Ga. App. 34, 812 S.E.2d 105 (2018), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018), aff'd, 830 S.E.2d 195, 2019 Ga. LEXIS 448 (Ga. 2019).

- In a child abuse case in which the defense counsel asked the panel of potential jurors whether the nature of the case would have made it difficult for anyone to serve on the jury and the trial court sustained the state's objection on the ground that defense counsel impermissibly asked potential jurors to prejudge the case in violation of O.C.G.A. § 15-12-133, the defendant was not prejudiced by any error as the state asked a similar question under O.C.G.A. § 15-12-164(a)(2), and potential jurors were asked whether they had children or grandchildren, had foster children or operated a daycare center, or had received special training with respect to caring for children. Withrow v. State, 275 Ga. App. 110, 619 S.E.2d 714 (2005).

Impartiality

Juror stricken for cause when shown to be partial.

- Although a juror may have been acceptable under O.C.G.A. § 15-12-164 when questioned by the court, the juror may be shown to be partial when questioned by the state or defense and if such showing is made, the juror should be stricken for cause. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981).

- Although the question of juror impartiality is a mixed question of law and fact, the trial court's findings of impartiality will be set aside only if "manifest" prejudice to the defendant has been shown. Jones v. State, 247 Ga. 268, 275 S.E.2d 67, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 86 (1981).

Defendant's conviction for child molestation was affirmed because the trial court did not abuse the court's discretion in denying the defendant's motion to strike a potential juror who was the victim of child molestation at one time as the juror did not indicate any bias, prejudice, or partiality. However, granting the motion would have been the better practice. Doss v. State, 264 Ga. App. 205, 590 S.E.2d 208 (2003).

Examples of sufficient answers. Thomas v. State, 27 Ga. 287 (1859); Cato v. State, 72 Ga. 747 (1884).

- Fact that a potential juror may have some doubt as to the juror's impartiality, or complete freedom from all bias, does not demand as a matter of law that the juror be excused for cause. Greenway v. State, 207 Ga. App. 511, 428 S.E.2d 415 (1993).

Opposition to Capital Punishment

1. In General

- Statutes, authorizing the interrogation of a juror in regard to the juror's opposition to capital punishment do not deny a person accused of a capital crime the right to a trial by an impartial jury; neither does it deny the accused due process of law, or the equal protection of the laws. Massey v. State, 222 Ga. 143, 149 S.E.2d 118, appeal dismissed, 385 U.S. 36, 87 S. Ct. 241, 17 L. Ed. 2d 36 (1966); Abrams v. State, 223 Ga. 216, 154 S.E.2d 443 (1967).

"Death-qualified" jury procedure does not violate the constitutional right to a jury trial. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978).

In a trial for felony murder, if no juror in the case was excused simply because the juror answered the question specified in paragraph (a)(4) of O.C.G.A. § 15-12-164 in the affirmative (or was declared competent in all respects simply because the juror answered in the negative), the defendant lacked standing to challenge the constitutionality of paragraph (a)(4). Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987).

Defendant lacked standing to challenge the constitutionality of the O.C.G.A. § 15-12-164(a)(4) question regarding conscientious objection to the death penalty because the death qualification voir dire in the case was more extensive and detailed than that provided by paragraph (a)(4) and the record indicated that no potential juror was excused or declared competent to serve based solely on his or her answer to the paragraph (a)(4) statutory question. Pruitt v. State, 270 Ga. 745, 514 S.E.2d 639, cert. denied, 528 U.S. 1006, 120 S. Ct. 502, 145 L. Ed. 2d 388 (1999).

Group questioning and nonverbal responses are permissible methods of determining whether jurors' attitudes toward the death penalty would either automatically cause the jurors to vote against the death penalty or prevent the jurors from impartially deciding the defendant's guilt. McCorquodale v. Balkcom, 721 F.2d 1493 (11th Cir. 1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984).

- If one juror was erroneously struck for cause on the basis of opposition to capital punishment, even though the state had one peremptory strike remaining when the twelfth juror was seated, the defendant's death sentence must be vacated, and the case remanded for imposition of a life sentence or resentencing in accordance with the law. Allen v. State, 248 Ga. 676, 286 S.E.2d 3 (1982).

- Since the record showed that voir dire in defendant's capital murder case was more extensive than that provided by paragraph (a)(4) of O.C.G.A. § 15-12-164, and no potential juror was excused from serving or declared competent to serve based solely on that paragraph, the defendant did not have standing to challenge § 15-12-164 on constitutional grounds. Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998); King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000), cert. denied, 536 U.S. 957, 122 S. Ct. 2659, 153 L. Ed. 2d 834 (2002).

If party is not sentenced to death the party has no standing to complain of the use of paragraph (a)(4). Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980).

Defendant may not raise an issue concerning a juror's ability to impose the death penalty on appeal when defendant was sentenced to life imprisonment rather than death. Wallace v. State, 246 Ga. 738, 273 S.E.2d 143 (1980), cert. denied, 451 U.S. 988, 101 S. Ct. 2325, 68 L. Ed. 2d 847 (1981).

- If jurors are incompetent to serve in a capital felony case, and the jurors' disqualification having been called to the attention of the court, it is not error to dismiss those jurors in the absence of a formal motion by the solicitor general (now district attorney). Curtis v. State, 224 Ga. 870, 165 S.E.2d 150 (1968).

- If a juror's answers to questions concerning conscientious objection to the death penalty clearly disqualify the juror, the defendant is not entitled to further questioning as a matter of right, although the trial court may allow further questioning. Roberts v. State, 252 Ga. 227, 314 S.E.2d 83, cert. denied, 469 U.S. 873, 105 S. Ct. 228, 83 L. Ed. 2d 157 (1984).

2. When Juror May Be Excluded

Opposition to death penalty.

- Trial court may constitutionally excuse prospective jurors who are opposed to the death penalty. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 418, 314 S.E.2d 210 (1984).

Trial court did not err by asking jurors a question on death penalty views prescribed by O.C.G.A. § 15-12-164(a)(4) because the statute allowed for follow-up questions by both parties, and the court did not err in excusing jurors in accordance with constitutional standards; the defendant lacked standing to challenge the constitutionality of § 15-12-164(c), because no prospective jurors were excused based on that statute. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010).

- Once state clearly establishes a potential juror's unequivocal opposition to the death penalty, it is then incumbent upon the defendant to make an objection specifying why the juror should not be dismissed and to request further questions that would clarify any perceived ambiguity or equivocating by the juror. McCorquodale v. Balkcom, 721 F.2d 1493 (11th Cir. 1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984).

- State is not prevented from asserting the right to exclude from the jury any juror who states that the juror could never vote to impose the death penalty or that the juror would refuse even to consider the death penalty's imposition in the case before the juror. Massey v. Smith, 224 Ga. 721, 164 S.E.2d 786 (1968), cert. denied, 395 U.S. 912, 89 S. Ct. 1756, 23 L. Ed. 2d 225 (1969), later appeal, Massey v. State, 229 Ga. 846, 195 S.E.2d 28 (1972).

Prospective jurors are properly excluded by the trial court who upon voir dire state that he or she could not impose the death penalty, regardless of the facts and circumstances that might emerge in the course of the proceedings. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

In a capital case, a prospective juror who is opposed to the imposition of the death penalty under any circumstances is automatically removed by the trial judge "for cause." Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978).

Prospective juror who indicates that the juror will not vote for the death penalty in the case, regardless of the facts, a prospective juror who says that the juror cannot impose the death penalty unless the juror had been an eyewitness to the crime (which the juror was not), and a prospective juror who says that, even though the juror favored the death penalty in some circumstances, the juror personally could never impose capital punishment were properly disqualified. Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979).

If jurors are disqualified in a murder and rape proceeding because of the jurors' reservations about capital punishment, the jurors are properly excused for cause, and the defendant is not deprived of the defendant's right to a jury selected from a representative cross-section of the community. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980).

Veniremen who are irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the trial, may be excluded for cause. Lewis v. State, 246 Ga. 101, 268 S.E.2d 915 (1980).

- State has the right to challenge for cause any prospective juror who states that the juror's reservations about capital punishment would prevent the juror from making an impartial decision as to a defendant's guilt. Furthermore, the state is not prevented from asserting the right to exclude from the jury any juror who states that the juror could never vote to impose the death penalty or that the juror would refuse even to consider the death penalty's imposition in the case before the juror. Miller v. State, 224 Ga. 627, 163 S.E.2d 730 (1968).

State has the right to challenge for cause any prospective juror who states that the juror's reservations about capital punishment would prevent the juror from making an impartial decision as to a defendant's guilt of rape. Massey v. Smith, 224 Ga. 721, 164 S.E.2d 786 (1968), cert. denied, 395 U.S. 912, 89 S. Ct. 1756, 23 L. Ed. 2d 225 (1969).

- Trial court erred by ruling that a negative answer to the fourth statutory question was sufficient to qualify a prospective juror in all respects regarding the juror's attitudes toward the death penalty. A juror who has made up the juror's mind prior to trial that the juror will not weigh evidence in mitigation is not impartial. Such a juror's views on capital punishment would prevent or substantially impair the performance of the juror's duties as a juror in accordance with the juror's instructions and the juror's oath. In other words, an inability fairly to consider a life sentence is just as disqualifying as an inability fairly to consider a death sentence. Skipper v. State, 257 Ga. 802, 364 S.E.2d 835 (1988).

It is not sufficient that juror be willing to "consider" death penalty if he or she is committed to automatically vote against the death penalty after having "considered" the death penalty. The juror must be able to abide by existing law and be able to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case. A trial judge does not err in refusing to allow defense counsel to examine the juror as to whether the juror would follow the instructions of the trial judge and "consider" sentencing the defendant to death, yet not vote for the death penalty after the juror indicated the juror's conscientious objection to the death penalty. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981); Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 418, 314 S.E.2d 210 (1984).

- There was no error in causing two jurors to be set aside for cause who, upon their voir dire, stated that the jurors were opposed to capital punishment in cases dependent upon circumstantial evidence. Smith v. State, 146 Ga. 76, 90 S.E. 713 (1916).

No defendant on trial in this state under an indictment for murder has a right to be tried by jurors who are opposed to capital punishment upon circumstantial evidence. Aycock v. State, 188 Ga. 551, 4 S.E.2d 221 (1939).

If the voir dire questions in a case are dependent entirely upon circumstantial evidence but at the request of the defendant's counsel are supplemented by asking the jurors if the jurors are opposed to capital punishment when the evidence is circumstantial, and 12 jurors disqualify on this ground, the contention that these jurors were improperly excluded is without merit, particularly if objection is not made before trial, but only in the motion for new trial. Aycock v. State, 188 Ga. 551, 4 S.E.2d 221 (1939).

- Venireman who is excused must make it unmistakably clear: (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before the veniremen; or (2) that the veniremen's attitude toward the death penalty would prevent the veniremen from making an impartial decision as to the defendant's guilt. Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (11th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 75 L. Ed. 2d 487 (1983); Alderman v. Austin, 498 F. Supp. 1134 (S.D. Ga. 1980), aff'd in part, rev'd in part on other grounds, 663 F.2d 558 (11th Cir. 1982), on reh'g, 695 F.2d 124 (11th Cir. 1983); Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981).

Veniremen who are not irrevocably committed before the trial has begun to vote against the penalty of death regardless of the facts and circumstances cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. Lewis v. State, 246 Ga. 101, 268 S.E.2d 915 (1980).

- Excusing for cause jurors who are conscientiously opposed to capital punishment is error. Miller v. State, 224 Ga. 627, 163 S.E.2d 730 (1968).

- Sentence of death cannot be carried out if the jury that imposed the sentence was chosen by excluding jurors for cause because the jurors expressed conscientious scruples against the sentence's infliction. Dixon v. State, 224 Ga. 636, 163 S.E.2d 737 (1968).

Death sentence cannot constitutionally be executed if imposed by a jury when all persons on the panel who are opposed to capital punishment or have conscientious scruples against imposing the death penalty have been removed as disqualified for that reason alone. Thomas v. State, 118 Ga. App. 359, 163 S.E.2d 850 (1968), cert. denied, 394 U.S. 943, 89 S. Ct. 1273, 22 L. Ed. 2d 477 (1969); Clark v. Smith, 224 Ga. 766, 164 S.E.2d 790 (1968), rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2279, 29 L. Ed. 2d 859 (1971).

- When twelfth juror is selected and state has three peremptory challenges remaining, exclusion for cause of three complained of jurors for their opposition to capital punishment is harmless. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978), cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), for comment, see 31 Mercer L. Rev. 349 (1979).

This section does not attempt to define voir dire, nor does the statute exclude by the statute's language all other questions not mentioned therein which may be asked the juror when put on the voir dire. Croft v. State, 73 Ga. App. 318, 36 S.E.2d 200 (1945).

Conduct of voir dire is within discretion of trial court, and the court's rulings are proper absent some manifest abuse of discretion. Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524 (1978), cert. denied, 439 U.S. 1102, 99 S. Ct. 881, 59 L. Ed. 2d 63 (1979); Anderson v. State, 148 Ga. App. 683, 252 S.E.2d 187 (1979).

Whether to strike juror for cause lies within the discretion of the court. Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524 (1978), cert. denied, 439 U.S. 1102, 99 S. Ct. 881, 59 L. Ed. 2d 63 (1979).

Whether to strike a juror for favor lies within the sound discretion of the trial court, and absent a manifest abuse of that discretion, appellate courts will not reverse. Harris v. State, 178 Ga. App. 735, 344 S.E.2d 528 (1986).

- Although it is the better practice for the trial court or the prosecution to ask questions based on the language in subsection (a) of O.C.G.A. § 15-12-164 in all criminal cases, those questions must be asked only in felony cases. Jones v. State, 221 Ga. App. 374, 471 S.E.2d 318 (1996).

Statutory voir dire questions may be put to jurors as group over objection. Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976).

Statutory questions may be administered to the jury en masse in a felony case. Ivester v. State, 252 Ga. 333, 313 S.E.2d 674 (1984).

If the court addresses the questions presented in O.C.G.A. § 15-12-164(a) to prospective jurors en masse, there is no assignable error. Whittington v. State, 252 Ga. 168, 313 S.E.2d 73 (1984).

Statutory questions may be propounded by the court and explained. Dumas v. State, 65 Ga. 471 (1880); Nobles v. State, 127 Ga. 212, 56 S.E. 125 (1906).

- Court was not required to inform the prospective jurors of the charges against the defendant prior to their individual examination by defense counsel, although it is preferable to give them this context in which to consider the questions and their responses. The limits of discretion were not exceeded in the court's conduct of voir dire. Jackson v. State, 209 Ga. App. 217, 433 S.E.2d 655 (1993).

- Trial court can allow a prosecuting attorney to qualify jurors by putting to the jurors the statutory questions. Davis v. State, 189 Ga. App. 439, 376 S.E.2d 230 (1988).

It was not error for the court to permit the prosecutor to read the indictment, ask the first three questions set forth in O.C.G.A. § 15-12-164(a), and announce that the jurors appeared to be qualified. Robertson v. State, 268 Ga. 772, 493 S.E.2d 697 (1997), cert. denied, 523 U.S. 1140, 118 S. Ct. 1845, 140 L. Ed. 2d 1095 (1998).

In a burglary case, a court did not err by failing to order that voir dire be transcribed since the defendant did not request that voir dire be recorded, and the questions required under O.C.G.A. § 15-12-164 were transcribed and were included in the record on appeal. McConnell v. State, 263 Ga. App. 686, 589 S.E.2d 271 (2003).

Stenographer may be allowed to propound questions. West v. State, 79 Ga. 773, 4 S.E. 325 (1887).

Only statutory questions can be asked in the first instance. If the juror answers the statutory question satisfactorily, and is pronounced prima facie competent, and the parties put the juror before the court as trier, aliunde evidence of the untruthfulness of the juror's answers must be offered, and it is not competent to propound questions to the juror personally to show the juror's incompetency. It is within the province of the court to permit a further examination of the juror personally in rebuttal of the testimony offered to show the juror's incompetency. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Neither counsel for the state nor for the defendant may as matter of right ask juror upon voir dire any other questions than those prescribed by statute. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Challenge to poll only invokes right to ask juror questions prescribed, that is, the voir dire questions. Garner v. State, 67 Ga. App. 772, 21 S.E.2d 656 (1942).

- Trial counsel did not render ineffective assistance by failing to ensure that the trial court asked all three statutory voir dire questions required under O.C.G.A. § 15-12-164(a) as trial counsel's own questions to the jury venire adequately covered the principles that the two omitted questions were intended to address. Hendrix v. State, 298 Ga. 60, 779 S.E.2d 322 (2015).

Other questions may be asked by permission of court. Alford v. State, 137 Ga. 458, 73 S.E. 375 (1912); Lindsay v. State, 138 Ga. 818, 76 S.E. 369 (1912).

It is within discretion of trial court to ask other questions in addition to those prescribed by statute to test competency, fairness, or impartiality of prospective jurors. Bailey v. United States, 53 F.2d 982 (5th Cir. 1931).

- In the examination of prospective jurors, counsel may not ask technical legal questions or juror's opinions concerning technical legal questions. This is the duty of the trial court. Sprague v. State, 147 Ga. App. 347, 248 S.E.2d 711 (1978).

- Question on voir dire, calculated to elicit answers from prospective jurors that the jurors would never yield to the argument or reasoning of their fellow jurors, may be disallowed. Conner v. State, 160 Ga. App. 202, 286 S.E.2d 441 (1981).

- Defendant is entitled to rely on juror's answers on voir dire absent actual knowledge of incorrectness of those answers. Thomas v. State, 249 Ga. 339, 290 S.E.2d 462 (1982).

- Defendant is entitled to be tried by a fair and impartial jury and to exercise knowledgeable challenges in the pursuit of this judicial ideal. It does not follow, however, that every incorrect answer given on voir dire calls inexorably for a new trial; the question of bias and resultant prejudice remains to be determined. If the answer was given in good faith with no deliberate intent to mislead, the trial court may well find that no prejudice resulted, even though the lack of disclosure might have impaired defendant's right to exercise a knowledgeable peremptory challenge. Jones v. State, 247 Ga. 268, 275 S.E.2d 67, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 86 (1981).

- During voir dire examination, the statement of a prospective juror that the juror had arrested the defendant, without specifying what the arrest was for, was not so inherently prejudicial as to deny the defendant a fair trial. Hughey v. State, 180 Ga. App. 375, 348 S.E.2d 901 (1986).

- Principal challenge to poll is based on alleged facts from which juror is conclusively presumed to be incapacitated. The question principally raised is one of law and is to be decided by the court, and such decision is subject to review. Bowens v. State, 116 Ga. App. 577, 158 S.E.2d 420 (1967).

- Challenges to poll are to be tried by court on testimony of juror to exclusion of all other evidence. If the juror's answer is found to be true, the juror is disqualified per se. Cummings v. State, 226 Ga. 46, 172 S.E.2d 395 (1970), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2858, 33 L. Ed. 2d 751 (1972).

- If the juror when put upon voir dire qualifies, either party then has the right to put the individual juror upon the court as a trier, and to submit any proof that will tend to illustrate the question of qualification. Humphries v. State, 100 Ga. 260, 28 S.E. 25 (1897); Wells v. State, 102 Ga. 658, 29 S.E. 442 (1897); Ford v. State, 12 Ga. App. 228, 76 S.E. 1079 (1913).

Words "shall have the right to introduce evidence," intimate that proof is to come from some other source than the juror personally. The court might sua sponte further interrogate the juror, but the party has no right to do this. Cummings v. State, 226 Ga. 46, 172 S.E.2d 395 (1970), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2858, 33 L. Ed. 2d 751 (1972).

Courts and juries are not bound to believe improbable facts. Patton v. State, 117 Ga. 230, 43 S.E. 533 (1903).

- It is not error in felony case for the court to refuse a motion to purge the jury as to disqualification before beginning to select a jury for trial. The statutes on the subject as applied to felony cases are different from those applicable to civil and misdemeanor cases. Gossett v. State, 203 Ga. 692, 48 S.E.2d 71 (1948), appeal dismissed, 214 Ga. 840, 108 S.E.2d 272 (1959).

- Failure to record and report the voir dire, absent the defendant's request and absent any showing of a specific instance of prejudice or harm therein is not reversible error. Morrison v. State, 155 Ga. App. 234, 270 S.E.2d 397 (1980).

Defendant's contention that possible error occurred during voir dire or defense counsel may have been ineffective and that, because of the lack of a record, defendant will never know if there was error was not a sufficient basis to require a new trial. Primas v. State, 231 Ga. App. 861, 501 S.E.2d 28 (1998).

- Failure to record voir dire in a case in which the sentence of death is imposed is reversible error. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 418, 314 S.E.2d 210 (1984).

- See Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983).

- Trial court erred in refusing to strike a juror for cause because, inter alia, the juror admitted that, based on the juror's experience interviewing child abuse and molestation victims, the juror was biased towards the child victim, and stated that the defendant would need to present evidence controverting the child's testimony to sway the juror's opinion; although the juror agreed, upon explicit questioning by the prosecutor, that child victims were not always truthful and indicated the juror's belief that the juror could render an impartial verdict, these responses were not determinative. After answering the prosecutor's inquiries, the juror again revealed a bias toward the child victim and stated that the defendant could not overcome that bias unless the defendant submitted contrary evidence. Garduno v. State, 299 Ga. App. 32, 682 S.E.2d 145 (2009).

Right to voir dire jurors may be waived by defendant; and if a jury is selected without any request being made by the defendant or defendant's counsel to have the jurors put upon their voir dire, this right is thereby waived. The fact that the defendant and defendant's counsel did not know that the jurors were not put upon their voir dire until after the verdict is not sufficient reason for granting a new trial, unless it appears that they could not have discovered the existence of the fact by the exercise of ordinary diligence. Smith v. State, 168 Ga. 611, 148 S.E. 531 (1929).

Defendant may forfeit defendant's right to voir dire conducted under oath by failing to timely assert that right. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).

- To raise issue as to error in conduct of voir dire, objection must be made in trial court to preserve issue for appeal. State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980).

Trial court did not err when the court posed the question to prospective jurors regarding whether the jurors had any ethical, moral, religious, or other beliefs that would not allow the jurors to sit in judgment of someone's guilt or innocence, and since the defendant failed to object to the question, the matter was not preserved for review. Walker v. State, 258 Ga. App. 333, 574 S.E.2d 400 (2002).

- If the court's failure to ask the statutory voir dire questions contained in O.C.G.A. § 15-12-164 to the fourth panel of jurors was not brought to the court's attention at trial, there was no reversible error, since there had been no timely objection. Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987).

Assuming defense counsel's performance was deficient for failing to object to the trial court's failure to ask the qualifying voir dire questions that are required by O.C.G.A. § 15-12-164(a), the defendant failed to show that the outcome of the trial would have been different had the trial court asked the statutory questions as the prosecutor asked the potential jurors whether the jurors were acquainted with the defendant or the victim, and, if so, whether the jurors could remain impartial. Since the potential jurors indicated no bias and defendant did not contend that any juror was, in fact, biased or prejudiced, the defendant failed to show ineffective assistance of trial counsel. Burnette v. State, 291 Ga. App. 504, 662 S.E.2d 272 (2008), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

- When the defendant has to exhaust the defendant's peremptory strikes to excuse a juror who should have been excused for cause, that error is harmful. Logue v. State, 155 Ga. App. 476, 271 S.E.2d 42 (1980).

- It is not error on voir dire to refer to the accused as "the prisoner at the bar." Leach v. State, 138 Ga. App. 274, 226 S.E.2d 78 (1976).

- Defendant's conviction for aggravated assault was affirmed because the prosecutor was required to mention the defendant's name during voir dire, pursuant to O.C.G.A. §§ 15-12-163(b)(4) and15-12-164(a)(2), to see if any of the jurors knew the defendant. Thus, there was no ground for a mistrial. Alexander v. State, 264 Ga. App. 251, 590 S.E.2d 233 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Jury, § 167 et seq.

- 50A C.J.S., Juries, §§ 412 et seq., 473, 483 et seq.

- Betting on result as disqualifying juror, 2 A.L.R. 813.

Membership in secret order or organization for the suppression of crime as proper subject of examination, or ground of challenge, of juror, 31 A.L.R. 411; 158 A.L.R. 1361.

Excusing qualified juror drawn in criminal case as ground of complaint by defendant, 96 A.L.R. 508.

Prejudice against certain type of defense as ground of challenge for cause of juror in criminal case, 112 A.L.R. 531.

Right of counsel in criminal case personally to conduct the voir dire examination of prospective jurors, 73 A.L.R.2d 1187.

Disclosure in criminal case of juror's political, racial, religious, or national origin prejudice against accused or witnesses as ground for new trial or reversal, 91 A.L.R.2d 1120.

Propriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case, 99 A.L.R.2d 7.

Juror's presence at or participation in trial of criminal case (or related hearing) as ground of disqualification in subsequent criminal case involving same defendant, 6 A.L.R.3d 519.

Beliefs regarding capital punishment as disqualifying juror in capital case - post-Witherspoon cases, 39 A.L.R.3d 550.

Propriety, on voir dire in criminal case, of inquiries as to juror's possible prejudice if informed of defendant's prior convictions, 43 A.L.R.3d 1081.

Jury: membership in racially biased or prejudiced organization as proper subject of voir dire inquiry or ground for challenge, 63 A.L.R.3d 1052.

Juror's voir dire denial or nondisclosure of acquaintance or relationship with attorney in case, or with partner or associate of such attorney, as ground for new trial or mistrial, 64 A.L.R.3d 126.

Similarity of occupation between proposed juror and alleged victim of crime as affecting juror's competency, 71 A.L.R.3d 974.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 A.L.R.3d 15.

Religious belief, affiliation, or prejudice of prospective jurors as proper subject of inquiry or grounds for challenge on voir dire, 95 A.L.R.3d 172.

Validity and construction of statute or court rule prescribing number of peremptory challenges in criminal cases according to nature of offense or extent of punishment, 8 A.L.R.4th 149.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case, 39 A.L.R.4th 465.

Juror's reading of newspaper account of trial in state criminal case during its progress as ground for mistrial, new trial, or reversal, 46 A.L.R.4th 11.

Cure of prejudice resulting from statement by prospective juror during voir dire, in presence of other prospective jurors, as to defendant's guilt, 50 A.L.R.4th 969.

Professional or business relations between proposed juror and attorney as ground for challenge for cause, 52 A.L.R.4th 964.

Fact that juror in criminal case, or juror's relative or friend, has previously been victim of criminal incident as ground of disqualification, 65 A.L.R.4th 743.

Propriety of inquiry on voir dire as to juror's attitude toward or acquaintance with literature dealing with amount of damage awards, 63 A.L.R.5th 285.

Examination and challenge of federal case jurors on basis of attitudes toward homosexuality, 85 A.L.R. Fed. 864.

Jury Section and Voir Dire in Criminal Cases, 76 Am. Jur. Trials 127.