Tyree v. State

Hunt, Justice,

concurring specially.

I concur in the judgment only, because I agree that reversible error was committed by the district attorney’s failure to inform the trial court and defense counsel of the connection between his office and a number of jurors, when those jurors had given erroneous or inaccurate responses to relevant defense questions. I also agree that the district attorney should have recused himself from the trial of this case, although his failure to do so would not cause reversal since Tyree offered no timely objection.

I disagree, however, that a change of venue was mandated under Jones v. State, 261 Ga. 665 (409 SE2d 642) (1991). The new standard in Jones does not apply to cases tried before January 16, 1992. Jones, supra at 666, fn. 4. Under the rule which was in effect, the trial court’s determination that the jurors could put aside pretrial knowledge of the case acquired from publicity about the crime and could render a fair verdict was not an abuse of discretion and was by no means “manifest error.” Mu’min v. Virginia, _ U. S. _ (111 SC 1899, 1907, 114 LE2d 493) (1991).3

I am authorized to state that Justice Fletcher joins in this special concurrence.

On Motion for Reconsideration.

The attorney general has filed a motion for reconsideration on two grounds.

1. First, the attorney general contends we should not apply the new standard for change of venue adopted prospectively in Jones v. State, 261 Ga. 665 (409 SE2d 642) (1991), to this case. We agree. *399However, this case must be reversed because, as in Jones itself, the pre-existing standards for change of venue require it.

Decided July 8, 1992 Reconsideration denied July 30, 1992. Lee W. Fitzpatrick, L. Clark Landrum, Clive A. Stafford-Smith, for appellant. David E. Perry, District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Peggy R. Katz, Staff Attorney, for appellee.

2. Second, the attorney general argues for the first time on motion for reconsideration that the jurors at issue in Division 2 of our opinion were not “clients” of the district attorney. He relies on OCGA § 19-11-23 (b), which provides that when rendering assistance to the Department of Human Resources pursuant to OCGA § 19-11-23 (a), “the district attorney shall represent the department and the department shall be the sole client of the district attorney.”

Subsection (b) was added to OCGA § 19-11-23 effective July 1, 1992 — more than two years after this case was tried. Whatever the future ramifications of subsection (b), there is no dispute that these jurors were regarded as “clients” of the Child Support Recovery Unit of the office of the district attorney, that through the CSRU they were “represented” by the district attorney, and that they had “hired” the office for a nominal payment in the expectation of receiving financial benefits.

The attorney general concedes in his motion for reconsideration that the district attorney should have disclosed this information to the defense. That is exactly what the majority opinion holds.

The motion for reconsideration is denied.

Attached to Tyree’s venue motion were newspaper articles published between August and September of 1989. The most recent article predated the trial by at least six months.