dissenting.
What is the real basis for reversal here? The Mullinses made three motions related to jurors Pirkele and Grizzle. One motion was for mistrial and was properly denied because, at the time it was made, the only evidence before the trial court was the jurors’ statements of impartiality. The second motion was for mistrial and is waived because it was not renewed after curative instructions were given. And the third motion was to remove Pirkele and Grizzle, and that motion was granted.
However: (1) the special concurrence reverses because “the state failed to prove that the improper juror communication was harmless”; and (2) the majority reverses because of a possible improper communication by Pirkele or Grizzle to the rest of the venire which “may very well have” contributed to the verdict. In my view, neither position withstands scrutiny.
1. Special Concurrence:
During a trial recess, a third party, Gray, made an unsolicited comment to jurors Pirkele and Grizzle that the defendants would not be there if they were not guilty. Before recess was over, defense counsel brought it to the court’s attention, and the trial court immediately brought Gray, Pirkele, and Grizzle into court for a hearing on the matter.
The first question to the jurors was whether Gray had talked to them about the case:
[Trial court:] Mr. Grizzle, do you remember any comment he made about the case?
[Grizzle:] No, sir, not about the case, he didn’t, Judge. He sure didn’t.
[Trial Court:] Did you hear anything, Mr. Pirkele about the case?
[Pirkele:] No, sir.
*560The jurors were then told the comment was about the defendants’ guilt or innocence — not about the facts of the case: “[Defense counsel:] Mr. Gray, I believe, told the jurors that they wouldn’t be here, the defendants wouldn’t be here today if they weren’t guilty, and Mr. Grizzle acknowledged that fact.” Grizzle unhesitatingly admitted hearing that comment: “[Trial court:] Mr. Grizzle, did you hear that? [Grizzle:] Yes, sir, I did.” Pirkele and Grizzle then volunteered the following — unasked:
[Pirkele:] Yes, I heard it.
[Grizzle:] But I didn’t make a comment when he said it.
[Trial court:] You didn’t comment back?
[Grizzle:] No, sir, I sure didn’t.
The trial court asked both jurors if Gray’s improper comment would influence their decision:
[Trial court:] Mr. Gray’s comment, is that going to affect you in any way, your ability to listen to the evidence in this case and decide this case based upon the evidence presented to you, rather than anything you heard outside?
[Grizzle:] No, sir, it won’t, Judge. Sure won’t.
[Trial court:] Mr. Pirkele, how about you?
[Pirkele:] No, sir. It sure won’t.
It was at this point defense counsel made his first motion — when there was no evidence before the court of anything other than (a) Gray made the improper comment and (b) Pirkele and Grizzle could remain impartial despite the comment: ‘Your Honor, I move for a mistrial at this point. I believe the jury has been improperly tainted and I believe it will cause reversible error.” The trial court denied the motion.
(a) The trial court believed the jurors’ assertions of impartiality. The special concurrence (and the majority) may not believe them and may think the jurors “initially misinformed the court,” but the trial court did not see them or their voir dire responses in that light. The trial court found them “honest.” “A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.” Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998). The trial court believed the jurors. And it was the trial court’s credibility decision to make, not ours. The trier of fact is the exclusive judge of the credibility and weight to be accorded the evidence. Harris v. State, 155 Ga. App. 530 (1) (271 SE2d 668) (1980).
At this point, everyone agreed that the improper comment was made. But at the time the defense made the initial motion for mis*561trial, the evidence was that (i) neither juror had responded to the improper comment; (ii) the improper comment did not affect either juror; and (iii) they both could decide the case based on the evidence presented, Accordingly, there was no harm to the defendants established by the fact the comment was made, since it would not affect the jurors. Butler v. State, 270 Ga. 441, 445 (511 SE2d 180) (1999); Davidson v. State, 231 Ga. App. 605, 612 (7) (499 SE2d 697) (1998).
(b) The special concurrence asserts — wrongly — that “[t]he conclusive claims of jurors Pirkele and Grizzle that they were not influenced by the remark is insufficient to prove lack of harm.” That is not the law. The case that the special concurrence cites, Lamons v. State, 255 Ga. 511, 513 (340 SE2d 183) (1986), is an extraordinary one in which a juror telephoned the chief prosecuting police officer during an overnight trial recess and developed a “confidential relationship” of “trust” with him. It was only “[i]n these circumstances, a conclusive statement by the juror that she was not influenced is insufficient to prove lack of harm.” (Emphasis supplied.) Id. Otherwise, a conclusive statement of impartiality from a juror is sufficient to show lack of harm. See Pruitt v. State, 270 Ga. 745, 755 (22) (514 SE2d 639) (1999); Speed v. State, 270 Ga. 688, 694 (26) (512 SE2d 896) (1999); Butler v. State, supra at 445; Davidson v. State, supra at 612. We do not have the extraordinary circumstances of Lamons before us here, and the trial court was entitled to rely on the jurors’ statements of impartiality.9
(c) The special concurrence also asserts that the State failed to meet its burden to establish lack of harm because “when given the chance to make some showing about the prejudice of the communication, the state offered nothing.” However, there was nothing more to offer. A juror’s statement that the improper communication will not influence his or her decision meets the burden the State is to carry: “The evidence establishes that the improper communication in this case did not affect the impartiality of the jurors, and the trial court therefore did not err by denying [the Mullinses’] motion for mistrial.” Pruitt v. State, supra. No harm has been shown by the fact the trial court, not the State, conducted the voir dire of Pirkele and Grizzle. The State is not required to re-ask the same question just for the sake of asking, when lack of harm has already been established by the evidence. “Because the defendant has failed to show how he has been prejudiced by the allegedly improper remark in the case at bar, *562we find no abuse of discretion under the circumstances of the present case.” (Emphasis supplied.) Jones v. State, 185 Ga. App. 649, 652 (3) (366 SE2d 144) (1988).
Since the evidence at the first motion for mistrial established that the improper communication in this case did not affect the impartiality of the jurors, the State’s burden was met, and the trial court did not err by denying the Mullinses’ motion. Pruitt v. State, supra at 755. The special concurrence’s determination to the contrary is, to my mind, incorrect.
2. Majority Opinion:
(a) After Pirkele and Grizzle returned to the jury room, defense counsel perfected the record on this issue. Counsel put up defendant Kimberly Mullins who testified, that, in response to Gray’s improper comment:
[Mullins:] The one in the gray shirt or the green shirt, whatever his name, Mr. Pirkele, he said, ‘Yeah, I know.”
[Trial court:] The guy in the green shirt, the younger fellow?
[Mullins:] Yes, sir.
[Trial court:] That’s not Mr. Pirkele. We got a problem there. Okay. Anything else, Mr. Cox?
It was at this point defense counsel made his second motion, asking that “the entire panel, be struck based on conversations which took place outside the courtroom.” Defense counsel also claimed a brand new ground for mistrial, i.e., possible prejudice because of the hearing itself, since Pirkele and Grizzle were present at the hearing and defense counsel had “indicated that [Grizzle] had spoken.”
The trial court denied the second motion for mistrial, finding that the jurors did not respond to Gray’s comment: “I don’t find that they did do anything wrong. In fact, I specifically find that they did not do anything wrong.” Thereafter, the trial court gave curative instructions to the entire venire to disregard any comments that they may have heard during break and to decide the case based only on evidence from the witness stand. Defense counsel did not renew the motion for mistrial following the curative instructions.
(i) Because Mullins did not renew her motion for a mistrial after this curative instruction, she failed to preserve this alleged error for our review. Ward v. State, 234 Ga. App. 610, 611-612 (507 SE2d 506) (1998).
(ii) Waiver aside, there was no error. “Where the trial court receives evidence that is conflicting as to irregularities in the conduct of the jury, the appellate court will not reverse unless the trial court has abused its discretion.” (Citation and punctuation omitted.) Colantuno v. State, 262 Ga. 830, 831 (1) (426 SE2d 563) (1993).
*563Here, the trial judge did not believe defendant Mullins’ claim that a juror responded ‘Yeah, I know” to Gray’s comment. That was the court’s right as trier of fact. Again, the trier of fact is the exclusive judge of the credibility and weight to be accorded the evidence. Harris v. State, supra at 530. Evidence of record supports the trial court’s credibility determination in that (1) the jurors emphatically denied making any response to Gray’s comment; (2) defense counsel’s wife did not hear any juror response although she heard Gray’s comment; (3) defendant Mullins who heard the alleged response had an obvious interest in the outcome of the motion; and (4) Mullins had “a problem” identifying which juror even made the alleged response.
“[T]he trial court’s factual findings and credibility determinations will be upheld on appeal if there is any evidence to support them.” Kenerly v. Bryant, 227 Ga. App. 746, 747 (1) (490 SE2d 454) (1997). With evidence to support the trial court’s credibility determination that no response to Gray’s comment was ever made, the majority cannot simply choose to find “testimony regarding whether the juror responded to [Gray’s] remark was in conflict” and use such finding as a basis for reversal.
Since no evidence showed that either Pirkele or Grizzle held a view of “predetermined guilt,” such view could not be transmitted to the rest of the jury, as the majority fears.
(iii) As to defense counsel’s motion for mistrial because of possible prejudice resulting from the hearing itself, “ ‘[o]ne cannot complain of trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing.’ ” Davis v. State, 225 Ga. App. 564, 570 (8) (484 SE2d 284) (1997); Holcomb v. State, 268 Ga. 100, 103 (485 SE2d 192) (1997). To hold otherwise would be to condone a practice where defense counsel can request to voir dire a juror regarding impartiality and then achieve the removal of the juror, not through any answer demonstrating partiality, but because the very process of voir dire — requested by counsel — may have “prejudiced” the juror against the defense. This is an absurd result.
Since no evidence showed jurors Pirkele and Grizzle held any bias or prejudice because of the hearing or the statements made therein, we cannot assume, as the majority states, “possible personal resentment” and reverse. “[A] valid conviction is not otherwise vitiated unless the defendant was actually prejudiced by the communication.” (Emphasis supplied.) Jones v. State, supra at 651 (3). Speculation will not do.
(b) At the conclusion of the case and before jury deliberations, defense counsel asked the trial court to remove Pirkele and Grizzle. The trial court granted defense counsel’s request based on the defendants’ stipulation that they would proceed with ten jurors. Pirkele and Grizzle were removed. They did not participate in jury *564deliberations or the return of the verdict. The trial court instructed the jury that the two jurors were excused because of innocent contact from a third party and that the jurors had done nothing wrong. Prior to instructing the jury, the trial court reviewed the charge with defense counsel and asked, “Is there any problem with that, Mr. Cox?” Defense counsel replied, “No problem.”
(i) The defense got what it wanted. Counsel made no other request. Defense counsel agreed with the trial court’s charge to the jury to mitigate any possible “taint” from the removal of the two jurors. Counsel never requested removal of the entire panel because of, as the majority puts it, “possible personal resentment” communicated to the rest of the venire which “may very well have contributed to the verdict.”
(ii) It was not the State’s burden to prove that an improper communication between the two jurors and the rest of the venire was NOT made. We do not require a party to prove a negative. “The burden of proving the absence of harm shifts to the state only after an irregularity is shown.” Davitt v. State, 232 Ga. App. 427, 428-429 (3) (502 SE2d 300) (1998). If, as the majority states, the reversible irregularity in this case is an improper communication between the two jurors and the rest of the venire, it was the defense’s burden to prove that such improper communication was actually made. The State is not required to prove the absence of harm in a communication that was never proved to exist.
In sum, the special concurrence reverses because the State failed to prove that Gray’s improper communication was harmless, despite the fact the both jurors asserted that the improper communication did not affect their impartiality and the trial court believed their affirmative assertions, and the majority reverses because of a possible improper communication by Pirkele or Grizzle to the rest of the venire which “may very well have” contributed to the verdict — a communication for which there is absolutely no evidence. Since I cannot agree with either of these grounds for reversal, I respectfully dissent.
I am authorized to state Presiding Judge Blackburn and Judge Barnes join in this dissent.
I cannot help but express my concern about the tremendous amount of damage that can be done to the law by ignoring qualifying language and taking out of context a holding like “a conclusive statement by the juror that she was not influenced is insufficient to prove lack of harm.” In fact, in most cases, an affirmative statement of impartiality is all the proof that is available and that is all the proof that is required. See, e.g., Speed v. State, supra: