The oath provided in OCGA § 15-12-139 is mandatory and a trial court's total failure to give the oath to the jury is reversible error. Spencer v. State, 281 Ga. 533, 534 ( 640 SE2d 267) (2007); Grant v. State, 272 Ga. 213 ( 528 SE2d 512) (2000); Slaughter v. State, 100 Ga. 323 ( 28 SE 159) (1897). Although OCGA § 15-12-139 absolutely requires that the oath be given, it does not prescribe a specific time for the trial court to give the oath.
. . during the progress of the trial" but "a verdict rendered by jurors who have never been sworn is a nullity") (internal quotation marks omitted, emphasis in the original); State v. Godfrey, 136 Ariz. 471, 472-473, 666 P.2d 1080, 1081-1082 (1983) (The court distinguished the situation where "the jurors were never sworn" from the situation where they were belatedly sworn prior to their deliberations); People v. Pelton, supra, 116 Cal.App. Supp. at 791, 7 P.2d at 205 ("[W]hile mere irregularities in the swearing . . . may be waived by failing to object until after a verdict, an entire failure to swear the jury cannot be waived in any manner or under any circumstances"); People v. Clause, 859 P.2d 228, 233 (Colo.App. 1992) (The jury was sworn during the prosecution's case, and the court held that the error was harmless); Spencer v. State, supra, 281 Ga. at 534, 640 S.E.2d at 268 ("[T]he failure to administer [the] oath to the trial jury requires the setting aside of any conviction"); Grant v. State, 272 Ga. 213, 528 S.E.2d 512 (2000); State v. Frazier, 339 Mo. 966, 980, 98 S.W.2d 707, 715 (1936) ("[A] party may waive irregularities in the swearing of the jury, where there has been substantial compliance with the statute [that the jury be sworn at the beginning of the trial]"); State v. Mitchell, supra, 199 Mo. at 108, 97 S.W. at 562 (Since the jury was not sworn, the conviction was reversed); State v. Arellano, 125 N.M. 709, 711-712, 965 P.2d 293, 295 (1998) (As the jury was belatedly sworn, defense counsel's failure at the earlier stage of trial to call the court's attention to the omission constituted a waiver); Brown v. State, 220 S.W.3d 552, 554 (Tex.App. 2007) ("[A] complete failure to administer the jury oath renders the jury's verdict a nullity and is reversible error," but "the untimely swearing of the jury does not render the verdict void"); State v. Moore, supra, 57 W.Va. at 148, 49 S.E. at 1016 (The jury must be "sworn in the manner prescribed by law before there can be a legal conviction"). The only st
This Court has made plain that the petit jury oath provided in OCGA § 15-12-139 is mandatory; consequently, the failure to administer this oath to the trial jury requires the setting aside of any conviction based upon the decision of such an unsworn body and that there be a subsequent retrial. Grant v. State, 272 Ga. 213 ( 528 SE2d 512) (2000), citing Slaughter v. State, 100 Ga. 323 ( 28 SE 159) (1897). See also Keller v. State, 261 Ga. App. 769 ( 583 SE2d 591) (2003).
Slaughter v. State, 100 Ga. 323 ( 28 S.E. 159) (1897); Culpepper v. State, 132 Ga. App. 733 ( 209 S.E.2d 18) (1974). SeeGrant v. State, 272 Ga. 213 ( 528 S.E.2d 512) (2000).Slaughter, 100 Ga. at 330; Colbert v. State, 178 Ga. App. 657, 658 ( 344 S.E.2d 479) (1986).
Id. See Grant v. State, 237 Ga. App. 892, 896 (3) ( 515 S.E.2d 872) (1999) (noting strategic aspect of selecting appropriate "tone" during trial), reversed on other grounds by Grant v. State, 272 Ga. 213 ( 528 S.E.2d 512) (2000). 17. Butts has failed to show that he suffered any prejudice as the result of his trial counsel's failure to raise more objections to leading questions, and, accordingly, his argument that counsel thereby rendered ineffective assistance fails.
Adams v. State , 286 Ga. 496, 497 (2), 690 S.E.2d 171 (2010) ("The oath provided in OCGA § 15-12-139 is mandatory and a trial court's total failure to give the oath to the jury is reversible error."); Spencer v. State , 281 Ga. 533, 533, 640 S.E.2d 267 (2007) ("This Court has made plain that the petit jury oath provided in OCGA § 15-12-139 is mandatory; consequently, the failure to administer this oath to the trial jury requires the setting aside of any conviction based upon the decision of such an unsworn body and that there be a subsequent retrial."); Grant v. State , 272 Ga. 213, 213, 528 S.E.2d 512 (2000) ("[T]he State now concedes that the jury oath which is mandated by OCGA § 15-12-139 was never administered in this case. It follows that [the defendant's] motion to set aside his conviction should have been granted and the case must be remanded for retrial."
See Slaughter v. State, 100 Ga. 323, 330 ( 28 SE 159) (1897) ("a total failure to swear the jury is a matter which cannot, in any manner or under any circumstances, be waived. . . . [A]s a consequence, a conviction by an unsworn jury is a mere nullity") (emphasis supplied). See also Grant v. State, 272 Ga. 213 ( 528 SE2d 512) (2000); Culpepper v. State, 132 Ga. App. 733 (2) ( 209 SE2d 18) (1974). This appeal considers a belated oath given after the presentation of the evidence, but before the jury commenced deliberations and rendered their verdict.
See Dyson v. Alabama, 722 So.2d 782, 786 (Ala.Crim.App. 1997); California v. Pelton, 7 P.2d 205, 206 (CalApp. Dep't Super. Ct. 1931); Grant v. Georgia, 272 Ga. 213, 528 S.E.2d 512, 513 (2000); Steele v. Indiana, 446 N.E.2d 353, 354 (Ind.Ct.App. 1983); Michigan v. Pribble, 72 Mich.App. 219, 249 N.W.2d 363, 368 (1976); Miller v. Mississippi 122 Miss. 19, 84 So. 161, 163 (1920); Missouri v. Mitchell, 199 Mo. 105, 97 S.W. 561, 562 (1906); Howard v. Texas, 80 Tex.Crim. 588, 192 S.W. 770, 773 (1917); West Virginia v. Moore, 57 W.Va. 146, 49 S.E. 1015, 1016 (1905). These cases have focused largely on the important role that the oath plays.
Spencer v. State, 281 Ga. 533, 534 ( 640 SE2d 267) (2007).Grant v. State, 272 Ga. 213 ( 528 SE2d 512) (2000). Here, Benton correctly points out that the record fails to show whether the jury was sworn.
Phillips v. State, 275 Ga. 595, 596(3) ( 571 S.E.2d 361) (2002).Slaughter v. State, 100 Ga. 323, 330 ( 28 S.E. 159) (1897); see also Grant v. State, 272 Ga. 213 ( 528 S.E.2d 512).Smith v. State, 235 Ga. 852, 853(3) ( 221 S.E.2d 601) (1976).