Lester v. State

FINAL COPY

                 S20A0827. LESTER v. THE STATE.


      WARREN, Justice.

      Layton K. Lester was convicted of malice murder and other

crimes in connection with the shooting death of Lorrine Bozeman.1

On appeal, Lester contends that the trial court erred in admitting

statements he made to law enforcement after Bozeman’s death and

in denying his “motion for mistrial”2 arising from the presence of an


      1 The crimes were committed on April 29, 2007.     On May 12, 2009, a Tift
County grand jury indicted Lester, along with Shurrod K. Rich, for malice
murder, two counts of felony murder, armed robbery, burglary, and possession
of a firearm during the commission of a crime. Lester was tried separately
before a jury from August 13 to 14, 2009. The jury found Lester guilty on all
counts, and on December 15, 2009, nunc pro tunc to December 10, 2009, the
trial court sentenced him to life in prison for malice murder, a concurrent term
of twenty years for armed robbery, and terms of twenty years for burglary to
run consecutively to the murder sentence and five years for the firearm count
to run consecutively to the burglary sentence. The felony murder counts were
vacated by operation of law. Lester filed a timely motion for new trial on
December 18, 2009, which was amended more than nine years later on
February 22, 2019. The trial court denied the amended motion for new trial
on June 5, 2019, and also modified the original sentences for burglary and the
firearm count so as to run concurrently with the sentence for murder. Lester
filed a timely notice of appeal on June 10, 2019, which was amended on July
17, 2019. The case was docketed in this Court to the April 2020 term and
submitted for a decision on the briefs.
       2 We discuss Lester’s purported motion for mistrial below in Division 3.
alternate juror during jury deliberations. Seeing no reversible error,

we affirm.

     1. Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at Lester’s trial showed that Bozeman, who lived

in a house with her mother and who was Lester’s great aunt,

received a large amount of cash that she was planning to use to buy

a piece of property. On the evening of April 29, 2007, Lester was at

co-indictee Shurrod K. Rich’s house. Rich’s brother was present and

heard Lester suggest to Rich that they “go rob” Bozeman, telling

Rich that they could get $5,000 from the robbery.             Shortly

afterwards, Rich and Lester left Rich’s house.

     Between 10:00 and 10:30 on the same evening, Bozeman’s front

door was kicked in, and she was shot twice. Bozeman’s sister, Vernel

Clay, who lived several houses away, heard the gunshots and saw

two people running through her backyard afterwards. Clay’s son

also saw the same two people running up the street with two

shotguns that belonged to Bozeman’s mother. Clay and her son ran

to Bozeman’s house and found her lying on the floor without a pulse.

                                  2
A paramedic arrived and confirmed that Bozeman could not be

revived, and the crime scene was processed. Photographs taken at

that time and trial testimony from the paramedic and a law

enforcement officer revealed that Bozeman’s left pants pocket was

pulled inside out before they arrived.

     When Rich and Lester returned to Rich’s house, Rich’s brother

observed that Lester had changed into black clothes, was breathing

hard, was nervous, and later had cash to spend for food. Rich and

Lester told Sean Ross, a friend of theirs who lived in the area, that

they had robbed and shot Bozeman and that she had screamed.

Later the same night, when Lester’s mother came to pick him up,

Lester took $1,000 cash out of his pocket and asked a friend, Rodney

King, to hold it for him. After Lester’s mother overheard Lester

talking on the phone and noticed that he was acting nervous and

scared, she grew concerned and approached law enforcement. As a

result, Lester and his mother went to the police station, where two

GBI agents and a detective interviewed Lester over the course of

several hours, starting at approximately 7:00 that morning.

                                  3
      When Lester arrived at the police station, he was carrying $476

in cash. He told the officers that he was 15 years old, had completed

the ninth grade, and was not under the influence of drugs or alcohol.

Lester’s mother was present for the beginning of his first interview,

and she was present when he waived his rights under Miranda.3

Although the interview lasted for a total of about six hours, Lester

was given several breaks, and the officers reviewed Lester’s rights

each time they resumed interviewing him.

      During the portion of the interview when his mother was

present, Lester told the officers that King and another person had

planned to rob a drug dealer, left Rich’s house to commit the robbery,

and returned and gave Lester cash to keep him quiet. During the

interview, Lester admitted that he knew Bozeman generally kept

money in her pocket because of a previous burglary.

      Almost an hour and a half into the interview, an officer asked




      3 See Miranda v. Arizona, 

   (

, 16 LE2d 694)
(1966).

                                   4
if Lester’s mother would leave the room, and she agreed.4 Officers

continued interviewing Lester, who changed his story several times.

At one point, officers brought King into the interview room because

King had given a statement that contradicted Lester’s. During that

time, there was no physical contact between Lester and King, and

officers were positioned so that they could prevent any type of threat

to Lester.    Lester then admitted that King was not involved in

Bozeman’s robbery and murder. When King left, Lester said that

Gerald Rogers and another person approached him about

committing a robbery, left Rich’s house, returned, and gave Lester

$1,600 not to tell the police anything. Officers interviewed Rogers,



      4 A DVD recording showed that, about an hour into the interview, one

GBI agent asked Lester if he wanted to talk to the officers without his mother.
Lester’s mother asked him if he wanted her to leave, and he said, “if you want
to leave.” Lester’s mother responded that “the way you’re going, I might need
to.” More than once, she told Lester to tell the truth, and she eventually
became more involved in the interrogation, at one point telling him that he was
“leaving out stuff” and asking him if he had told the others that his aunt had
money. After describing one remark of Lester’s as a “strange statement,” one
GBI agent asked Lester, “Is it because your mom’s here? Would you tell us the
whole truth if your mom wasn’t here?” A few minutes later, the agent asked
Lester’s mother if she would “mind if we talk with him a little right quick?”
She agreed, got up, and stepped outside the room, but she continued listening
to the interview from another room for at least an additional 25 minutes. At
some later point, Lester’s mother said she was going home to get some sleep.
                                      5
who gave a statement that contradicted Lester’s, and when Rogers

was brought into the interview room with Lester, Lester did not

want to speak in front of Rogers. When Rogers was taken out of the

room, Lester admitted that he and someone other than Rogers had

planned Bozeman’s robbery.

     At Lester’s request, he then spoke alone with one of the GBI

agents who had previously interviewed him. Lester told the agent

that the person he had planned the robbery with was named

“Grady,” but that his real name was Shurrod Rich. Lester admitted

that he and Rich had gone to Bozeman’s house on the night of the

robbery and that Lester kicked in Bozeman’s door, but claimed that

Rich shot Bozeman twice. Lester also said that Rich took the money

from Bozeman’s pocket and indicated that the money had been

taken specifically from Bozeman’s left pocket.

     At some point during the course of his interviews, Lester was

arrested for murder. Before trial, Lester moved to suppress all of

the statements he made to law enforcement during the interviews



                                 6
summarized above. After a pretrial Jackson-Denno5 hearing on the

admissibility of those statements, the trial court found by a

preponderance of the evidence that Lester was “advised of his

Miranda rights, understood his Miranda rights, voluntarily waived

them[,] and thereafter freely and voluntarily gave these statements”

and that the statements were “made without any offer of hope or

fear of injury.” The trial court also determined that it would “allow

the jury to view” video recordings of portions of Lester’s interview.

     Lester does not contest the legal sufficiency of the evidence

supporting his convictions.        Nevertheless, consistent with this

Court’s general practice in murder cases, we have reviewed the

record and conclude that, when viewed in the light most favorable

to the verdicts, the evidence presented at trial was sufficient to

authorize a rational jury to find Lester guilty beyond a reasonable

doubt of the crimes for which he was convicted.6 See Jackson v.


     5 Jackson v. Denno, 

 (

, 12 LE2d 908) (1964).
     6 We remind litigants that the Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, 

      7
Virginia, 

 (

, 61 LE2d 560) (1979).

      2. Lester contends that the trial court failed to apply the nine-

factor test laid out in Riley v. State, 

 (

)

(1976), to evaluate whether his rights under Miranda were

knowingly and voluntarily waived. He also argues that the trial

court “failed to apply the proper procedural safeguards for juveniles”

at the pre-trial Jackson-Denno hearing when determining that

Lester’s statements were knowing and voluntary and thus

admissible.7 Because Lester has failed to show that the trial court


385, 399 (

) (2020). The Court began assigning cases to the
December Term on August 3, 2020.
       7 The majority of Lester’s arguments focus generally on whether his

custodial statements were made voluntarily or whether the State violated his
due process rights by attempting to coerce his statements. But he also argues
about whether he voluntarily waived his rights under Miranda. In so doing,
he largely conflates the Riley test — which was initially decided in the context
of whether a juvenile defendant had knowingly and intelligently waived his
rights under Miranda, see 

-128 — with a more general totality-of-the-circumstances due process analysis. See Byrum v. State, 

,
611 n.2 (

) (2007) (“Although appellant contends that the
admissibility of his statements should be analyzed using the factors set forth
in Riley . . . , the issue in that case was whether there was a knowing and
intelligent waiver of constitutional rights by the defendant. Here, appellant
made voluntary inculpatory statements prior to the point at which Miranda
warnings were constitutionally required, and the question of whether he
knowingly and intelligently waived his rights is not implicated.”) (citation
omitted). Notably, however, even though Riley was decided in a more limited

                                       8
did not properly apply the law concerning a juvenile’s waiver of his

rights or due process voluntariness, his claims fail.

      In the specific context of evaluating whether a juvenile

defendant’s rights were knowingly and voluntarily waived, the

inquiry “depends on the totality of the circumstances and the state

has a heavy burden in showing that the juvenile did understand and

waive his rights.” Riley, 

. To that end, “age alone is

not determinative of whether a person can waive his rights. Instead,

the question of waiver must be analyzed by a consideration of

several factors”:

      (1) age of the accused; (2) education of the accused; (3)
      knowledge of the accused as to both the substance of the
      charge and the nature of his rights to consult with an
      attorney and remain silent; (4) whether the accused is
      held incommunicado or allowed to consult with relatives,
      friends or an attorney; (5) whether the accused was
      interrogated before or after formal charges had been filed;
      (6) methods used in interrogations; (7) length of
      interrogations; (8) whether vel non the accused refused to
      voluntarily give statements on prior occasions; and (9)
      whether the accused has repudiated an extra judicial

context, this Court has also relied on its factors in evaluating more general due
process voluntariness cases for juveniles. See, e.g., Oubre v. Woldemichael, 

 (

) (2017); Murray v. State, 

 (

) (2003); Jackson v. State, 

 (

) (2000).
                                       9
     statement at a later date.

 (citation and punctuation omitted). See also Allen v. State, 

 (

) (2008).

     In addition, in making its pretrial decision about the

admissibility of Lester’s statements, the trial court was required to

“determine whether, based upon the totality of the circumstances, a

preponderance of the evidence demonstrate[d] that the statement

was made freely and voluntarily.” Butler v. State, 

(

) (2013) (citation and punctuation omitted). We have

also held that when the voluntariness of a statement to law

enforcement is at issue, a trial court should make an “actual ruling”

on the voluntariness of the statement. Parker v. State, 

 (

) (1985) (where trial court made no specific ruling

on the voluntariness of a confession, case remanded for clarification

and further findings as needed). But we generally do not require

trial courts to make specific, on-the-record findings about each

aspect of the totality of the circumstances they evaluate or to make

“explicit factual findings or credibility determinations on the

                                  10
record.” Cain v. State, 

 (

) (2019)

(affirming trial court’s denial of a motion to suppress defendant’s

custodial statement where the trial court found that, based on a

preponderance of the evidence, the statement was made voluntarily,

because the trial court had made an “implicit finding as to the

voluntariness of [the] statement” that was not clearly erroneous

based on the record). See also Allen v. State, 

(

) (1993) (rejecting argument that “the trial court erred

by not making a finding on the record that there was a factual basis

for its determination” that defendant’s “incriminating custodial

statement had been freely and voluntarily given” because such a

finding “is not required by either state or federal law” and affirming

trial court where the record showed that the trial court’s

determination was not clearly erroneous). Indeed, “unless clearly

erroneous, a trial court’s credibility determinations and factual

findings relating to the admissibility of a confession,” whether

explicit or implicit, “must be upheld on appeal,” although “we

independently apply the law to the facts.” Davis v. State, 

625, 629 (

) (2020) (citation and punctuation omitted).

      Lester first argues that the trial court failed to “specifically

apply” the nine factors set forth in Riley. But where the record

evidence is “sufficient to support the court’s conclusion that [a

defendant] knowingly and voluntarily waived his right to counsel

and that his statements were properly admitted at trial under the

Riley test,” we have rejected the assertion that “the appellate record

is incomplete” simply because the trial court’s order is “silent as to

whether the Riley factors were considered.” Green v. State, 

 (

) (2007).

      To that end, the record shows that both Lester and the State

argued the Riley factors at the Jackson-Denno hearing, with Lester

focusing on how certain Riley factors supported his position and the

State presenting evidence about all nine Riley factors.8 The trial

court concluded that Lester voluntarily waived his rights,


      8 The State also presented evidence on all nine Riley factors at trial, and

this “Court may consider all the evidence of record, in addition to the evidence
adduced at the Jackson-Denno hearing, in determining the admissibility of a
defendant’s statement.” Francis v. State, 

 (

)
(2014).
                                       12
specifically concluding that Lester — who the trial court

acknowledged was a “minor” — was “advised of his Miranda rights,

understood his Miranda rights, and voluntarily waived them.” The

trial court was not required to go further and make express findings

on the record specifically about the Riley factors. See Green, 

.

     Second, Lester argues that law enforcement officers “used

inappropriate interrogation techniques” and implies that officers

coerced Lester’s statements by bringing into the interview room

people (specifically, King and Rogers) Lester implicated in

Bozeman’s robbery and murder, particularly given that his mother

was not present during those portions of Lester’s interviews.

Relatedly, he argues that the trial court was required to make

“specific findings” on these issues.

     Lester’s claims fail because he cites no legal authority to

support either of his arguments. See Supreme Court Rule 22. See

also Collins v. State, 

, 612 n.4 (

) (2020)

(“[O]ther than a bare assertion” about the error raised, the

                                  13
appellant’s brief contained only “factual and legal argument” about

a separate point that was part of the same enumeration of error;

because appellant did “not provide citation to legal authority or legal

analysis . . . , her argument . . . is deemed abandoned under Supreme

Court Rule 22”).

     In any event, Lester’s claims that his statements to law

enforcement were not voluntary fail. First, at the Jackson-Denno

hearing, the trial court specifically found that Lester “freely and

voluntarily gave . . . statements” to law enforcement after

voluntarily waiving his rights under Miranda, and Lester concedes

on appeal that the trial court “applied a ‘totality of the

circumstances’ test at the Jackson-Denno hearing.”

     Second, to the extent Lester complains about people he accused

of being involved in the crimes being present during his own

interview, the temporary presence of those people — without threats

or other indicia of coercion — does not reach the level of “[c]oercive

police activity — such as excessively lengthy interrogation, physical

deprivation, and brutality” — that “is a necessary predicate to the

                                  14
finding that a confession is not ‘voluntary’ within the meaning of the

Due Process Clause of the Fourteenth Amendment.” Dozier v. State,

 (

) (2019) (citations and punctuation

omitted).

     Third, Lester also argues that “law enforcement officers were

responsible for having Mr. Lester’s mother removed from the

[interrogation]   room,”   contends   that   law enforcement       took

“affirmative action . . . to remove the mother of a juvenile being

questioned,” and implies that the alleged removal was somehow

coercive to Lester. His legal analysis for why the trial court erred,

however, appears to conflate the analysis of due process

voluntariness (i.e., whether he was coerced) with whether the trial

court appropriately applied the fourth Riley factor, which examines

whether a juvenile was allowed to consult with relatives as one of

many factors a trial court may consider as part of its determination

that a juvenile’s waiver of rights was voluntary or involuntary.

     To the extent Lester’s complaint about the lack of presence of

one or both of his parents during his interviews with law

                                 15
enforcement is focused on due process voluntariness, it is unavailing

because presence of a parent is merely one factor a trial court should

consider in its totality-of-the-circumstances evaluation of the

voluntariness of a juvenile’s statement. Here, the record shows that

Lester’s mother was present during Lester’s waiver of rights and for

almost an hour and a half of the interview; that her absence

afterwards occurred after Lester acquiesced in her leaving, see

Heard v. State, 

 (

) (2010) (although

parental absence “was a factor for the trial court to consider, . . . it

was not determinative on the issue of voluntariness”); and that on

several occasions during the Jackson-Denno hearing, the trial court

asked about Lester’s mother’s presence and, before making its

ruling, expressly commented on the voluntariness of the statements

Lester made in front of his mother. And to the extent Lester’s

argument focuses on a single Riley factor, we have already rejected

Lester’s arguments that specific findings on any given Riley factor

are required where, as here, the record supports the trial court’s

determination.

                                  16
     Finally, the trial court’s ruling on the voluntariness of Lester’s

statements included all of the general findings that we have

expressed a “preference for trial courts to make . . . if the evidence

warrants them”: “that the defendant was advised of each of his

Miranda rights, that he understood them, that he voluntarily

waived them, and that he thereafter gave his statement freely and

voluntarily without any hope of benefit or fear of injury.” Brown v.

State, 

 (

) (2014) (citation and

punctuation omitted). The trial court was not required to make

“explicit factual findings” beyond its general ruling on the

voluntariness of Lester’s statements, see Cain, 

, and

Lester’s claims of error fail.

     3.   Lester argues that the trial court erred in denying his

“motion for mistrial” after the parties and the trial court realized

that an alternate juror inadvertently retired with the jury for

deliberations in violation of OCGA § 15-12-171. Lester is correct

that OCGA § 15-12-171 was violated here, but we nonetheless

conclude that the State met its burden of showing that the alternate

                                  17
juror’s presence during deliberations was harmless.

      After the verdicts were published but before the jury was

discharged, the District Attorney advised the trial court and defense

counsel of his suspicion that an alternate juror had been present in

the jury room during deliberations. The trial court sent the jury

back to the jury room. During an ensuing colloquy, defense counsel

expressed concern and requested that the court individually ask

each juror if the alternate juror was present during deliberations.

The court agreed and brought each juror back into the courtroom

one by one, swore each juror in, and questioned each juror (other

than the alternate) about whether the alternate was present during

deliberations, whether the alternate participated in deliberations or

voted on a verdict, and whether he influenced any juror’s verdict.9

At defense counsel’s request, the court then sequestered each juror

from the jurors who had not yet been questioned.

      All of the jurors affirmed that the alternate juror had been


      9 As the State points out, OCGA § 24-6-606 (b) of our current Evidence

Code — and its limitations on post-trial juror testimony — was not yet in effect.
See, e.g., Collins, 

.
                                       18
present in the jury room during deliberations. One juror recalled

that the alternate did not participate in or say anything during

deliberations; six jurors did not recall one way or the other whether

the alternate participated in or said anything during deliberations;

and five jurors recalled that the alternate did make comments or ask

a question during deliberations, but none could recall anything

specific that the alternate said. The foreperson and another juror

told the trial court that the foreperson informed the alternate that

he could not vote, and the ten jurors who were asked affirmed that

the alternate did not vote. All 12 jurors affirmed that the alternate

juror’s presence during deliberations did not influence their verdicts.

Defense counsel asked for an opportunity to research the issue

further.

     A week later, defense counsel filed a “Memorandum of Law in

Support of Defendant’s Oral Motion for Mistrial Regarding the

Presence of the Alternate Juror During Jury Deliberations.” Three

weeks later, the trial court entered an order purporting to deny



                                  19
Lester’s “motion for mistrial.”10 Three months after that, the trial

court entered Lester’s judgment of conviction and sentences.

Several days later, Lester filed a generic motion for new trial, and

nine years later, current appellate counsel filed an amendment to

Lester’s motion for new trial that specifically raised several issues,

including     the   admissibility       of   Lester’s   statements   to   law

enforcement and Lester’s claim that “[t]he [trial c]ourt erred by

denying [his] motion for mistrial based on the alternate juror[ ] being

present during deliberations in the jury room contrary to Georgia

law.” The trial court then denied Lester’s motion for new trial as

amended.

      (a) Before reaching the merits of this enumeration, we first

assess whether Lester properly preserved for appellate review his

claim about the presence of the alternate juror violating OCGA § 15-

12-171. Lester frames his argument in terms of the trial court’s

erring by denying his motion for mistrial; the State responds that



      10 We explain the procedural considerations related to Lester’s motion

for mistrial below in Division 3 (a).
                                        20
the issue was waived because Lester did not move for a mistrial at

the first practicable moment, i.e., when defense counsel first

discovered that the alternate juror had been present for

deliberations. But under these circumstances, a defendant cannot

waive a complaint about this type of error by not moving for a

mistrial. That is because the alternate-juror issue only became

known to the parties, and to the trial court, after a verdict was

returned in the case, and we have held that a motion for mistrial

after a verdict is rendered is improper. See Medina v. State, ___ Ga.

___, ___ (

) (2020) (“‘Once the jury returns its verdict,

the trial has ended and the time for granting a mistrial has passed,’

so a purported mistrial granted ‘after the jury had returned its

verdict resulted in a void order.’”) (quoting State v. Sumlin, 

 (

) (2006)). See also Carter v. State, 

 (

) (2001) (where defendant alleged improper

communication between the trial court and the jury, although the

defendant “did not object to the trial court’s communication prior to

the return of the verdict, . . . the record does not show that [he] knew

                                  21
of the trial court’s unauthorized colloquy with the jury, so the error

was not waived”); Pennie v. State, 

 (

) (1999) (where “juror apparently notified the court that a

spectator in the courtroom had attempted to speak to that juror in

the hallway,” identifying “no waiver of appellate review” where the

defendant “undisputedly had no knowledge of the irregularity in the

trial proceedings until after the verdict was rendered”).

     The proper vehicle for Lester’s alternate-juror claim was a

motion for new trial. See Sumlin, 

 (a motion for

mistrial, “by its very nature, seeks to end the trial proceedings

before a verdict is rendered” and “is not to be confused with a motion

for new trial, which is the appropriate vehicle through which to

pursue a retrial after the verdict has been rendered”). Lester was

required to pursue that potential remedy no later than 30 days after

the entry of judgment. See OCGA § 5-5-40 (a); Southall v. State, 

 (

) (2017).

     Here, Lester’s counsel did file a motion for new trial within 30

days after the judgment, and later filed an amended motion for new

                                 22
trial that expressly raised the alternate-juror issue.                   Lester

therefore submitted a filing on the relevant issue within the time

period that would have been required to file a valid motion for new

trial. And the trial court ruled on the issue by denying the motion

for new trial. Under these circumstances, Lester’s alternate-juror

claim has been preserved for our review, and we may evaluate it on

the merits.

      (b) Lester argues that the presence of the alternate juror

during deliberations violated OCGA § 15-12-171, resulting in a

presumption of harm that the State cannot overcome because it was

undisputed that the alternate remained with the jury throughout

deliberations and that some jurors11 affirmed that the alternate

participated in the deliberations by making comments or asking

questions. Although we agree that the alternate’s presence during

jury deliberations violated OCGA § 15-12-171, we conclude that the




      11 Lester claims that “each juror affirmed (with the exception of two) that

the alternate did, in fact, participate in deliberations,” but the record shows
that only five jurors stated that the alternate participated in deliberations by
making comments or asking questions.
                                       23
State met its burden of rebutting the presumption of harm by

showing that the alternate did not influence the jury’s verdicts, and

that the trial court did not err by denying a motion for new trial on

this basis.

     Under OCGA § 15-12-171, “[u]pon final submission of the case

to the jury, the alternate jurors shall not retire with the jury of 12

for deliberation but may be discharged. . . .” If the trial court deems

it advisable to keep one or more of the alternate jurors available,

however, “it may direct that one or more of the alternate jurors be

kept in the custody of the sheriff or one or more court officers,

separate and apart from the regular jurors, until the jury has agreed

upon a verdict.” Id. “[T]here is a rebuttable presumption of harm

to the defendant if an alternate juror sits in on the jury’s

deliberations over the defendant’s objections.” Coley v. State, 

 (

) (2019) (citation and punctuation

omitted).

     Lester argues that, to overcome the presumption of harm, the

State was required to prove that the alternate juror did not

                                  24
participate in deliberations, even if the evidence shows that the

jury’s verdict was not influenced as a result. Lester insists that

under Johnson v. State, 

 (

) (1975),

the State falls short of meeting its burden if it fails to present

affirmative evidence that the alternate juror did not participate in

deliberations and that the jury was not influenced by the alternate

juror’s presence.12       But we do not read Johnson as effectively

establishing a mandatory presumption of harm whenever the




      12 Lester relies on Johnson’s quotation from United States v. Allison, 481

F2d 468, 472 (5th Cir. 1973), that “‘[s]ufficient prejudice and effect on the jury’s
verdict would be shown and, therefore, a new trial required’” if the alternate
juror “‘in any way participated in the jury deliberations, or if any regular juror
was deterred in the free exercise of his independence of thought, expression, or
action by the mere presence of a non-participating alternate during
deliberations.’’’ Johnson, 

. But Allison did not advance a strict
two-pronged, disjunctive “participation or influence” test as Lester argues.
Instead, it outlined a number of factual considerations — such as whether the
alternate participated in deliberations, voted, indicated his views “orally or
otherwise,” or “restrained any of the regular jurors in expressing his views or
in exercising his independence of thought and action” — and directed the
district court in that case to conduct an evidentiary hearing to make further
findings of fact. Allison, 481 F2d at 472. Then, in its later opinion after
remand, United States v. Allison, 487 F2d 339, 339 (5th Cir. 1973), the Fifth
Circuit focused on the ultimate question of whether the jurors and the verdict
were influenced by the alternate juror’s presence and affirmed the district
court’s denial of a new trial on the basis that they were not.



                                        25
alternate juror merely “participates” in deliberations. When the

same issue later arose in State v. Newsome, 

 (

) (1989), and the presence of the alternate juror during

deliberations was undisputed, we neither ruled on nor required the

trial court to rule on the issue of participation.13 Instead, we cited

Johnson in holding that “the presence of the alternate juror was

harmless error” because the jurors’ “affidavits establish[ed] that the

alternate juror did not influence any juror, or the verdict of the

entire jury.” Newsome, 

. See also Bullock v. State,

 (

) (1979) (unlike in Johnson,

there was “no . . . showing of harmlessness . . . made or attempted

by the state” where “the trial court merely asked the foreman

whether the alternate juror had participated in the vote or the

deliberations” and “the foreman replied in the negative”; the court



      13 We also note that there is no clear definition of what constitutes
“participation” for purposes of this argument. See, e.g., Allison, 481 F2d at 472
(not defining “participation” and listing a number of other factors that courts
should evaluate separate from the “participation” factor); Johnson, 

 (“The mere fact that the alternate juror admits that he looked at some of
the evidence is insufficient to rise to the level of participation which caused a
reversal” in another federal case).
                                       26
did “not consider this a showing that none of the jurors were

influenced in any way by the alternate’s presence”).

     It is true that in Eller v. State, 

 (

) (2018), we cited both Newsome and Johnson for the proposition

that “there is a presumption of harm to the defendant that the State

must overcome by presenting affirmative evidence that the

alternate juror did not participate in deliberations and that the jury

was not influenced by the alternate juror’s presence.” (citation and

punctuation omitted). But we similarly do not view Eller as

establishing a requirement for the State to offer affirmative

evidence of no participation and no influence when Johnson did not

establish such a rule. That is especially so given that Eller also cited

Newsome and is not inconsistent with Johnson on the ultimate

question of whether a verdict was influenced by the presence of an

alternate juror.

     This makes good sense: where an alternate juror does not

participate in deliberations and does not influence the verdict in any

other way, then a defendant cannot suffer prejudice from the

                                  27
alternate’s presence during jury deliberations; the ultimate question

of influence on the verdict has been answered, and the presumption

of harm has been rebutted.      But we now clarify that the same

ultimate question of influence on the verdict may be answered if a

trial court finds that the State met its burden of showing that no

juror was influenced by an alternate juror’s presence and the record

supports that the finding is not clearly erroneous. Although an

alternate’s participation in deliberations is one type of evidence —

and potentially a significant type of evidence — that is relevant to

the question of influence, it is not the only or ultimate evidence that

a trial court should consider in evaluating whether a violation of

OCGA § 15-12-171 was harmless.           See Eller, 

(summarizing juror affidavits as stating, among other things, that

the alternates did not participate in deliberations); Newsome, 

 (not requiring evidence of non-participation but

relying on juror affidavits otherwise establishing lack of influence);

Johnson, 

 (evaluating evidence of participation in

deliberations, which was explained as something more than merely

                                  28
looking at some of the physical evidence). We therefore disapprove

any reading of Johnson, Eller, or any Court of Appeals opinion,

including Chandler v. State, 

 (

)

(2011), and London v. State, 

, 781 (

)

(2003), as holding that there is a per se requirement to prove that

an alternate juror did not participate in deliberations in addition to

not influencing the verdict.

     In light of this clarification, we conclude that the State met its

burden of proving that the presence of the alternate juror during

deliberations was harmless error. See Newsome, 

.

Immediately after deliberations concluded and the verdict was

returned, the trial court individually questioned the 12 regular

jurors; it was undisputed that the alternate juror was informed he

could not vote and that he in fact did not vote; and even among the

five jurors who said that the alternate juror did make comments or

ask questions during deliberations, none could recall anything that

the alternate said. Moreover, all 12 of the jurors affirmed that the

presence of the alternate did not influence their verdicts. Given this

                                  29
record, and in light of the legal standard we clarify today, the trial

court did not err in refusing to order a new trial based on the

presence of the alternate juror during deliberations.

     Judgment affirmed. All the Justices concur.



                      Decided October 5, 2020.

     Murder. Tift Superior Court. Before Judge Reinhardt.
     Harold B. Baker, for appellant.
     C. Paul Bowden, District Attorney, Jennifer D. Hart, Robert A.
Rogers, Patrick Warren, Assistant District Attorneys; Christopher
M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Meghan H. Hill, Assistant Attorney General, for appellee.




                                 30