Harris v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.

In the Supreme Court of Georgia

Decided: June 22, 2022

S22G0018. HARRIS v. THE STATE.

COLVIN, Justice.

This case stems from the criminal trial of Shalita Jackson

Harris, a school bus driver who was convicted of homicide by vehicle

in the first degree after the bus she drove crashed, resulting in the

death of a student. Following her conviction, Harris filed a motion

for new trial alleging that jurors had engaged in misconduct during

deliberations by researching the available sentences for her charges.

The trial court denied the motion, and the Court of Appeals affirmed.

See Harris v. State, 360 Ga. App. 695, 698-699 (1) (859 SE2d 587)

(2021). We granted certiorari to determine whether “the Court of

Appeals err[ed] in concluding that [Harris’s] claim of juror

misconduct was not sufficiently prejudicial to require a new trial.”

Because the Court of Appeals and trial court applied the wrong legal
standards, we vacate the judgment and remand for further

proceedings consistent with this opinion.

1. By way of background, Harris was indicted for homicide

by vehicle in the first degree, reckless driving, two counts of

homicide by vehicle in the second degree, speeding, and driving too

fast for conditions. After a five-day jury trial, Harris was found

guilty of homicide by vehicle in the first degree and reckless driving. 1

Upon learning of a potential juror-misconduct issue, Harris filed a

motion for new trial.

The trial court held a hearing on Harris’s motion for new trial,

during which each of the 12 jurors testified. Two jurors testified

that, during deliberations, they had “Googled” the difference

between “first and second degree.” One of the two jurors testified

that she “Googled” the term “[f]irst degree” and knew that some of

1 The jury acquitted Harris of speeding and one count of homicide by
vehicle in the second degree. The trial court directed a verdict of acquittal on
the remaining counts. The reckless-driving count merged with the homicide-
by-vehicle-in-the-first-degree count for sentencing purposes, and the court
sentenced Harris to ten years, with the first three years to be served in prison
and the remainder to be served on probation.
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the charges were more serious than others based on, among other

things, the search results. The other juror testified that, during

deliberations, she “Googled what the difference between first and

second degree was,” learned that first degree was a felony and

second degree was a misdemeanor, and conveyed that information

to the other jurors. 2

Several other members of the jury testified that they knew or

might have known during deliberations that some of the charges

were more serious than others in terms of punishment. These jurors

said that they either obtained this information from another juror

or learned it from the indictment, verdict form, or trial evidence. At

least one juror testified that he did not recall knowing during

deliberations that some charges were more serious than others.

The trial court denied Harris’s motion, concluding that juror

misconduct did not warrant a new trial. As an initial matter, the

court concluded that the presumption of prejudice, which this Court

2 Homicide by vehicle in the first degree as alleged in this case is in fact
a felony, see OCGA § 40-6-393 (a), and second-degree homicide by vehicle is a
misdemeanor, see OCGA §§ 40-6-393 (c), 17-10-3.
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had previously applied upon a finding of juror misconduct, see, e.g.,

Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997), did

not survive enactment of the current Evidence Code and was

therefore irrelevant in assessing prejudice under OCGA § 24-6-606

(b). Turning to the evidence, the court found that “[t]estimony from

each of the jurors confirm[ed] that extrajudicial information was

procured by or shared with some jurors, regarding the potential

sentence or seriousness of each crime.” The court noted, however,

that this information was neither evidentiary nor related to the

application of the substantive law but rather concerned “the

difference in degree or potential sentence of some of the charges.”

Because the jurors were instructed that sentencing issues were

outside the province of the jury and “[t]here is nothing to suggest

that this information would affect a jury’s decision on guilt or

innocence,” the court found “no reasonable probability the jury’s

verdict was influenced by this improper extrajudicial information.”

The Court of Appeals affirmed. See Harris, 360 Ga. App. at

699 (1). Without addressing whether the trial court had applied the

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correct legal standard, the Court of Appeals stated:

When irregular juror conduct is shown, there is a
presumption of prejudice to the defendant, and the
prosecution carries the burden of establishing beyond a
reasonable doubt that no harm occurred. To upset a jury
verdict, the misconduct must have been so prejudicial
that the verdict is deemed inherently lacking in due
process.

Id. at 698 (1) (citation and punctuation omitted). The court

acknowledged that, during deliberations, some of the jurors had

searched for or learned about “the difference in severity of the

charges.” Id. But because “the extra-judicial information obtained

by some of the jurors in this case had to do with the difference in the

severity of the crimes as opposed to the underlying substantive law

or evidence,” the court concluded that the jurors’ actions “were not

so prejudicial as to have contributed to the conviction, and were

harmless beyond a reasonable doubt.” Id. at 698-699 (1) (citation

and punctuation omitted). Accordingly, the Court of Appeals

concluded that the trial court had not abused its discretion in

denying Harris’s motion for a new trial on this ground. See id. at

699 (1). We granted certiorari and conclude that we must vacate the

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Court of Appeals’ ruling and remand the case because both the trial

court and the Court of Appeals relied upon incorrect legal principles

in ruling on Harris’s juror-misconduct claim.

2. “To set aside a jury verdict solely because of irregular jury

conduct, [a court] must conclude that the conduct was so prejudicial

that the verdict is inherently lacking in due process.” Dixon v. State,

302 Ga. 691, 694 (3) (a) (808 SE2d 696) (2017) (citation and

punctuation omitted). We have long held that, in assessing whether

juror misconduct meets this standard for prejudice, a court must

presume that the misconduct prejudiced the verdict, and the State

has a heavy burden to rebut this presumption:

When irregular juror conduct is shown, there is a
presumption of prejudice to the defendant, and the
prosecution carries the burden of establishing beyond a
reasonable doubt that no harm occurred.

Burney v. State, 309 Ga. 273, 293 (5) (845 SE2d 625) (2020) (citation

and punctuation omitted); see also, e.g., Shaw v. State, 83 Ga. 92, 98

(1) (9 SE 768) (1889) (“[W]here misconduct of a juror or of the jury is

shown, the presumption is that the defendant has been injured, and

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the onus is upon the State to remove this presumption by proper

proof,” that is, by a “show[ing] beyond a reasonable doubt that the

defendant was not injured by the misconduct of the . . . jury.”). Any

“juror misconduct that has the potential to injure a defendant’s due

process rights” triggers the presumption of prejudice, Burney, 309

Ga. at 293-294 (5) (citation and punctuation omitted), and a showing

that a single juror engaged in misconduct with the potential to harm

the defendant is sufficient to trigger the presumption, see Lamons

v. State, 255 Ga. 511, 512-513 (340 SE2d 183) (1986). To establish

that the juror misconduct was harmless beyond a reasonable doubt,

the State must show based on the record evidence that there is no

“reasonable possibility that the [juror misconduct] contributed to the

conviction,” Bobo v. State, 254 Ga. 146, 148 (1) (327 SE2d 208)

(1985). This will be the case where the State establishes that juror

misconduct was “an immaterial irregularity without opportunity for

injury.” Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996).

The trial court failed to apply these principles here, erring in

two respects. First, the court erred in concluding that OCGA § 24-

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6-606 (b) (“Rule 606 (b)”) displaced the presumption of prejudice

arising from a showing of juror misconduct. That provision of the

Evidence Code states:

Upon an inquiry into the validity of a verdict or
indictment, a juror shall not testify by affidavit or
otherwise nor shall a juror’s statements be received in
evidence as to any matter or statement occurring during
the course of the jury’s deliberations or to the effect of
anything upon the jury deliberations or any other juror’s
mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the
juror’s mental processes in connection therewith;
provided, however, that a juror may testify on the question
of whether extraneous prejudicial information was
improperly brought to the juror’s attention, whether any
outside influence was improperly brought to bear upon
any juror, or whether there was a mistake in entering the
verdict onto the verdict form.

OCGA § 24-6-606 (b) (emphasis supplied). As evident from the plain

language of this provision, and as we have previously explained,

Rule 606 (b) “governs what is or is not admissible to sustain or

impeach a verdict,” creating “a nearly categorical bar on juror

testimony, with only three specific exceptions.” Beck v. State, 305

Ga. 383, 385-386 (2) (825 SE2d 184) (2019) (citation and punctuation

omitted) (noting that Rule 606 (b)’s specific exceptions permit jurors

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to testify about whether “(A) extraneous prejudicial information was

improperly brought to the jury’s attention; (B) an outside influence

was improperly brought to bear on any juror; or (C) a mistake was

made in entering the verdict on the verdict form” (citation and

punctuation omitted)).

Here, Rule 606 (b) permitted the jurors to “testify on the

question of whether extraneous prejudicial information was

improperly brought to [their] attention” but prohibited them from

testifying as to how such information affected their deliberations or

the verdict. OCGA § 24-6-606 (b); see also Beck, 305 Ga. at 387 (2)

(“[I]f the trial court determines that extraneous information was

provided to the jury, it will have to evaluate prejudice without the

benefit of evidence of internal jury deliberations.”).3 In limiting the

evidence on which a court may rely in determining whether juror

misconduct warrants a new trial, however, Rule 606 (b) did not

3The trial court correctly recognized this limitation, instructing counsel
that they were limited to asking jurors about “whether extraneous prejudicial
information was brought to [their] attention” and that counsel could not ask
them “how or if that [information] influenced their verdict.”
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modify our longstanding substantive legal standards for assessing

prejudice. Accordingly, the trial court erred in failing to accord a

presumption of prejudice to Harris upon its finding that jurors

engaged in improper extrajudicial research with the potential to

deprive Harris of due process. See Burney, 309 Ga. at 293-294 (5).

Second, although the trial court correctly recognized that it

was the State’s burden to show that juror misconduct was non-

prejudicial, it applied the wrong standard of proof in assessing

prejudice. Specifically, the court determined that there was “no

reasonable probability” of harm, invoking the standard typically

applicable to nonconstitutional errors, rather than applying the

“beyond a reasonable doubt” standard that applies to most

constitutional errors, including errors arising from juror

misconduct. Compare Burney, 309 Ga. 293-294 (5) (noting that

reversal for juror misconduct is warranted unless the misconduct

was harmless “beyond a reasonable doubt”), and Yancey v. State, 275

Ga. 550, 557-558 (3) (570 SE2d 269) (2002) (“Whether a

constitutional violation constitutes harmless error depends on

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whether . . . . there is a reasonable possibility that the improperly

admitted evidence contributed to the conviction.” (citations and

punctuation omitted)), with Henderson v. State, 310 Ga. 708, 713 (3)

(854 SE2d 523) (2021) (“The test for determining nonconstitutional

harmless error is whether it is highly probable that the error did not

contribute to the verdict.” (citation and punctuation omitted)).

The Court of Appeals properly recognized both that a

presumption of prejudice attaches upon a finding of juror

misconduct and that the State needed to prove beyond a reasonable

doubt that the misconduct was non-prejudicial. See Harris, 360 Ga.

App. at 698 (1). However, that court erred when it concluded as a

matter of law that, while extrajudicial information obtained by a

juror about “the underlying substantive law or evidence” could

prejudice a defendant, extrajudicial information about “the

difference in the severity of the crimes” had no potential to cause

prejudice. Id. at 698-699 (1) (citation and punctuation omitted).4

4 Unlike the Court of Appeals, the trial court properly considered the
“type” of extrajudicial information at issue (e.g., whether the information

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 The Court of Appeals’ conclusion that a juror’s obtaining

extrajudicial sentencing information is always harmless beyond a

reasonable doubt conflicts with our decision in Beck. There, we

vacated the denial of a motion for new trial and remanded for the

trial court to consider, in accordance with the evidentiary strictures

of Rule 606 (b), the defendant’s contention that “he was denied a fair

trial because jurors considered extrajudicial information regarding

sentencing in reaching a verdict.” Beck, 305 Ga. at 385-387 (2). Had

the Court of Appeals been correct here that only extrajudicial

information concerning “the underlying substantive law or

evidence” could result in prejudice, Harris, 360 Ga. App. at 698-699

(1), there would have been no reason for us to remand the case in

Beck to consider whether “sentencing information” obtained by

concerned sentencing or the underlying substantive law) as only one factor in
determining whether the record as a whole established prejudice. The court
also correctly explained that, because Rule 606 (b) prohibits direct inquiry
about whether or how the extrajudicial information affected the jury, prejudice
must also be assessed by considering such factors as “how [the extrajudicial
sentencing information might have been] relevant to the issues decided by the
jury,” whether the record evidence “suggest[ed] that this [sentencing]
information would affect the jury’s decision on guilt or innocence,” and whether
the court had charged the jury that sentencing was an issue outside the
province of the jury.
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jurors warranted a new trial, Beck, 305 Ga. at 386-387 (2).

The Court of Appeals’ conclusion that jurors’ possessing

extrajudicial sentencing information can never prejudice a

defendant is also inconsistent with half a century of Georgia

legislation, case law, and practice prohibiting jurors from

considering punishment in reaching a verdict. “In 1970, [when] the

General Assembly created a bifurcated trial system for felony

criminal cases” that separated the guilt-innocence phase of a trial

from sentencing, the legislature provided that jurors were required

to “render a verdict of guilty or not guilty ‘without any consideration

of punishment’ before proceeding to sentencing the defendant.”

Foster v. State, 306 Ga. 587, 592 (2) (b) (832 SE2d 346) (2019)

(citations omitted). “Four years later, the legislature transferred

sentencing responsibility from the jury to the trial court in all felony

cases in which the death penalty was not sought.” Id.

In accordance with the General Assembly’s bifurcation of

felony criminal proceedings, Georgia court have taken steps to

prevent jurors tasked with rendering a verdict from being tainted

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with information regarding punishment. We have held that “[i]t is

improper for the court to give any instruction to the jury concerning

possible sentences in a felony case before the jury has determined

the question of guilt or innocence.” Bellamy v. State, 272 Ga. 157,

159 (4) (527 SE2d 867) (2000) (quoting Ford v. State, 232 Ga. 511,

519 (14) (207 SE2d 494) (1974)). We have also made it clear that

counsel should not inject sentencing issues into the guilt-innocence

phase of a trial. See Mack v. State, 306 Ga. 607, 613 (4) (d) (832

SE2d 415) (2019) (“[L]et there be no misunderstanding: if the

prosecutor’s statements did imply that the punishment for felony

murder was less than for malice murder, they would have been

plainly inappropriate. . . . We . . . remind the State of its

responsibility to avoid such arguments in future cases.”).

Further, for nearly 50 years now, Georgia courts have routinely

instructed jurors that they “are only concerned with the guilt or

innocence of the defendant” and “are not to concern [them]selves

with punishment.” Suggested Pattern Jury Instructions, Vol. II:

Criminal Cases § 1.70.20 (2022) (citing Wilson v. State, 233 Ga. 479,

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482 (8) (211 SE2d 757) (1975) (approving an instruction that stated

“You will not concern yourself with punishment at this time”)); see

also Stinski v. State, 286 Ga. 839, 852 (48) (691 SE2d 854) (2010)

(holding that a similar charge “properly directed the jurors to focus

their guilt/innocence phase deliberations solely on the question of

[the defendant’s] possible guilt rather than possibly being distracted

by premature concerns regarding sentencing”); Roberts v. State, 276

Ga. 258, 260 (4) (577 SE2d 580) (2003) (holding that the pattern

“charge is an accurate statement of the law”).5 Moreover, we have

5 There are “limited exception[s] to the general rule proscribing
consideration of the consequences of a guilty verdict,” which serve to “protect[]
the defendant’s right to an impartial verdict by correcting any misconceptions
jurors may have” so they can decide the issues before them “free from concerns
about whether and how the defendant might be punished.” Foster, 306 Ga.
at 593 (2) (b) (discussing OCGA § 17-7-131 (b) (3)); see also Morrison v. State,
276 Ga. 829, 833 (3) (583 SE2d 873) (2003) (“Just as this Court has recognized
the need to inject limited sentencing issues into jury instructions where the
Georgia statute on mental retardation applies, there is also a need to do so in
cases that are tried according to the procedures outlined in Fleming v. Zant[,
259 Ga. 687 (386 SE2d 339) (1989)].”), overruled on other grounds by State v.
Lane, 308 Ga. 10 (838 SE2d 808) (2020); State v. Patillo, 262 Ga. 259, 260 (417
SE2d 139) (1992) (noting that, although a “jury is instructed that if it finds the
defendant guilty but mentally retarded or mentally ill, the defendant will be
given over to the Department of Corrections or the Department of Human
Resources,” a “jury is not instructed . . . that a verdict of guilty but mentally
retarded will preclude a death sentence” because “[s]uch an instruction could
divert the jury’s attention and inject considerations inappropriate at the guilt
phase of the trial” (citation, punctuation, and emphasis omitted)).
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clarified that this charge is important enough that a juror’s inability

“to follow the instruction to deliberate without considering the

punishment” provides legal cause for his or her removal. Johnson

v. State, 288 Ga. 803, 807 (4) (708 SE2d 331) (2011).

As we have explained, the concern with injecting sentencing

considerations into the guilt-innocence phase of a trial is that, if the

jury can “discern what sentence(s) the defendant on trial is facing,”

it might “use that knowledge to fashion a verdict that will result in

the sentence the jury wishes to see imposed upon the defendant

being tried,” rather than deciding the defendant’s guilt or innocence

based on the evidence and underlying substantive law provided by

the court. State v. Vogleson, 275 Ga. 637, 640-641 (2) (571 SE2d 752)

(2002). Although we do not hold that a juror’s obtaining

extrajudicial sentencing information is always prejudicial, the Court

of Appeals erred in concluding that such information could never be

“so inherently prejudicial as to require a new trial.” Harris, 360 Ga.

App. at 698-699 (1) (citation and punctuation omitted).

Accordingly, we vacate the opinion of the Court of Appeals and

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direct the court to remand the case to the trial court to determine in

the first instance whether, applying the principles of law set out

above, Harris’s motion for a new trial based on juror misconduct

should be granted.

Judgment vacated and case remanded with direction. All the
Justices concur.

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