The Georgia Court of Appeals held that a bailiff’s comments to the jury that the case had previously resulted in a mistrial was an improper communication that warranted the reversal of the defendant’s convictions for child molestation and enticing a child for indecent purposes.
In State v. McCargo, the defendant filed a motion for new trial following his conviction alleging that there was an improper communication between a bailiff and the jury during deliberations. At the hearing on the motion for new trial, the defendant presented evidence that while the jury was deliberating, the bailiff informed them that the case had previously been tried and that it ended in a mistrial. The State conceded that this communication did, in fact, take place.
Georgia case law is clear that such communications between anyone and the jury are prohibited as “no outside influence shall be brought to bear on the minds of the jury.” When there has been an improper communication between a bailiff and the jury in a criminal case, the appellate courts have held that there is a presumption of harm and that a new trial is warranted unless the State can rebut that presumption with evidence sufficient to show that it had no affect on the outcome of the defendant’s trial.
At the hearing on the motion for new trial, the State made a proffer to the court that 11 of the jurors would testify that the comments made by the bailiff about the prior mistrial did not affect their deliberations or verdict. The trial court accepted the State’s proffer, rather than require the witnesses to testify, but held that it did not rebut the presumption of harm in the defendant’s case.
Rather, the trial court focused on evidence regarding statements by the twelfth juror in a series of Facebook messages. In the messages, the juror stated that the bailiff’s comments may have possibly constituted “jury tampering” and maintained that this information did affect their deliberations as well as that juror’s verdict. It was noted in the messages that this juror “was the only holdout,” that the bailiff’s comments were “all that it took to stir the pot,” and ultimately the bailiff’s statements to them “are what found him guilty.”
This twelfth juror alluded to the fact that the other jurors were then motivated to reach a verdict quickly since this was the second time trying the case. The juror stated that once the bailiff made those comments to them, “it was about how we were going to make it right.”
This juror testified at the hearing on the motion for new trial and admitted making these statements in the Facebook messages. She stated that the bailiff’s statements were discussed by the other jurors during deliberations and that in response to the bailiff’s comments, several jurors stated that they were going to “make the verdict right.” During her testimony, the jury backpedaled a bit and conceded that she may have exaggerated a little in her Facebook messages. Also, despite her statements in the messages, she testified at the hearing that the bailiff’s comments did not affect her verdict.
The Court of Appeals held that the evidence presented at the hearing supported the trial court’s finding that the State failed to rebut the presumption of harm from the bailiff’s comments. The Court noted that in order to sufficiently rebut the presumption of harm, the State’s evidence must establish that none of the jurors were influenced by the improper statements of the bailiff.
Therefore, the Court concluded that the evidence supported the granting of the defendant’s motion for a new trial. As a result, the defendant’s convictions for child molestation and enticing a child for indecent purposes were reversed and the case was remanded back to the trial court.