dissenting.
I dissent from Division 1 of the majority opinion. “A bailiff is to make no communication to a jury and is not to allow any other communication with them, except by leave of court. Where a communication from the bailiff to the jury is shown, the burden is on the state to rebut by proof the presumption of harm.” (Citations and punctuation *490omitted.) Hollis v. State, 191 Ga. App. 525 (382 SE2d 145) (1989). See also Jones v. State, 258 Ga. 96 (366 SE2d 144) (1988); OCGA § 15-12-140. Although the majority finds that the State met its burden because the juror testified that the deputy sheriff’s remark concerning the defendant’s guilt ultimately did not influence her ability to render a fair verdict, in this case, her testimony in this regard was not without equivocation, in that she also testified that her initial response to the remark was that the case was “open and shut.” Furthermore, our Supreme Court previously has recognized that there are some situations in which the misconduct may be so outrageous “that the public policy of the State requires a new trial for the defendant. [In those cases] the verdict should be set aside, whether the defendant was injured or not.” Shaw v. State, 83 Ga. 92, 101-102 (9 SE 768) (1889). In my opinion, such was the situation created in the case at bar when an officer of the court stated to a juror that the defendant was “guilty [that h]e deliberately murdered this man.” Consequently, I would reverse the trial court’s denial of defendant’s motion for new trial on the basis of the improper communication between the deputy sheriff and the juror.
Decided January 4, 1990 Rehearing denied February 13, 1990 Cook & Palmour, Bobby Lee Cook, Lloyd D. Murray, Jack E. Carney, Jr., for appellant. Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.I am authorized to state that Chief Judge Carley, Judge Beasley and Judge Cooper join in this dissent.