concurring specially.
I fully concur with the majority opinion, but write separately to discuss the state’s failure to meet its burden of proof in this case of improper jury contact.
A defendant is entitled to a trial by a jury untainted by improper influences, and when there has been an improper communication with a juror, the state bears the burden of proving beyond a reasonable doubt that the communication was not harmful to the defendant.2 In determining if the state has met its burden, the trial court focuses on, among other things, whether there was an attempt to discuss the merits of the case with the juror or to exert any influence upon the juror.3
During a break in the trial of Jimmy and Kimberly Mullins, jurors Pirkele and Grizzle were standing in a courthouse hallway when an acquaintance, William Gray, approached them and said that the defendants would not be there if they were not guilty. The trial judge was informed of the conversation. When he questioned Pirkele and Grizzle about the conversation, they first denied that Gray had said anything about the case, but when confronted with the fact that there were witnesses to the conversation, they both admitted that Gray had made the improper comment about the Mullinses’ guilt. Nevertheless, they told the judge, the comment would not affect their ability to decide the case based only on the evidence. The *558judge twice asked the state’s prosecutor if he had anything to offer, and both times he said that he did not. The judge then denied the Mullinses’ motion for a mistrial.
Did the trial court erroneously conclude that the state had carried its burden of proving beyond a reasonable doubt that Gray’s improper communication with the two jurors was not prejudicial to the Mullinses? I believe that the court did err because, on its face, the communication was about the merits of the case and appeared to be an attempt to influence the opinion of the two jurors about the Mul-linses’ guilt. Moreover, those two jurors initially misinformed the court that there had been no improper communication before admitting that it had occurred and then claiming that they would not be influenced by it. And when given the chance to make some showing about the prejudice of the communication, the state offered nothing.
In Lockridge v. State 4 the Supreme Court held that the state had not carried its burden of showing that the defendant was not harmed where a deputy sheriff improperly remarked to a juror that the defendant was guilty. And in Towler v. State,5 we ruled that the state had not met its burden of showing no harm where the jury foreperson’s mother, a court employee, told the foreperson that someone at work had said that the foreperson was holding out against a guilty verdict and was going to let a child molester go free. Likewise, in the instant case the state failed to overcome the presumption of harm and prove beyond a reasonable doubt that the Mullinses were not prejudiced by Gray’s improper remark about their guilt. The conclusive claims of jurors Pirkele and Grizzle that they were not influenced by the remark is insufficient to prove lack of harm.6 The trial court therefore should have granted the Mullinses’ motion for a mistrial.
The harm of the court’s error in denying the mistrial motion was exacerbated when the Mullinses agreed to have Pirkele and Grizzle removed from the jury and to proceed with a jury of only ten members. While defendants can waive their constitutional right to be tried by a jury of 12,7 they should not be forced into such a waiver because of an error by the court. Here, after the court’s error in finding that the state had proved beyond a reasonable doubt that there was no harm from the improper juror communication by Gray, the Mullinses had the unenviable choice of being tried either by a tainted jury of twelve or by a jury of only ten people. The trial court’s error was not cured, and in fact led to further error, by putting the Mul-*559linses in a position where they had to choose between the valuable rights of either an untainted jury or a 12-person jury.8
I therefore agree with the majority’s conclusion that the Mul-linses’ convictions must be reversed because of the trial court’s refusal to grant a mistrial after the state failed to prove that the improper juror communication was harmless.
I am authorized to state that Presiding Judge Pope and Judge Ellington join in this concurrence.
Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990); Towler v. State, 188 Ga. App. 43, 44 (2) (372 SE2d 242) (1988).
Head v. State, 191 Ga. App. 262, 264 (4) (381 SE2d 519) (1989); Towler, supra.
Supra at 529-530.
Supra at 45.
See Lamons v. State, 255 Ga. 511, 513 (340 SE2d 183) (1986).
Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989).
See Childress v. State, 266 Ga. 425, 436 (4) (467 SE2d 865) (1996) (court committed grave error by forcing defendant to choose between forgoing admission of relevant evidence and testifying before deciding if his testimony was needed).